Soula and Jantic

[2016] FamCA 856

FAMILY COURT OF AUSTRALIA

SOULA & JANTIC [2016] FamCA 856

FAMILY LAW – Recovery order

Family Law Act 1975 (Cth)

APPLICANT: Ms Soula

RESPONDENT: Mr Jantic

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10390 of 2014

DATE DELIVERED: 23 September 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 September 2016

REPRESENTATION

THE APPLICANT:	In person
THE RESPONDENT:	No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ondari

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

Orders

1. That all times be abridged to allow the matter to proceed without further notice to the father.

2. That until further order paragraphs 2 and 3 of the orders made 29 May 2015 be suspended.

3. That until further order the father be restrained from collecting the children B born …2009 and C born … 2014 from school or crèche or from otherwise contacting them.

4. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the said children B born … 2009 and C born … 2014 and deliver the said children to the mother forthwith, she being the person entitled to have the said children live with her, pursuant to orders made in the Family Court of Australia.

5. That the father, his servants and/or agents be and are hereby restrained from removing the children from the mother.

6. That if the father takes or attempts to retake possession of the children after execution of the recovery order, he may be arrested without warrant. 

7. That the Application in a Case filed 22 September 2016 be otherwise adjourned to be consolidated with the substantive proceedings before the Honourable Justice Johns.

8. That there be liberty to apply on short notice including to list for mention.

9. That the applicant mother as soon as practicable personally serve the respondent father with true copies of this order by email at his last known email address.

IT IS DIRECTED

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

3. That the preparation of these orders be expedited forthwith.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soula & Jantic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10380 of 2014

Ms Soula

Applicant

And

Mr Jantic

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application filed on 22 September by Ms Soula seeking a recovery order and, although she does not specifically say so, she has today made an oral application for all extant orders of the Court to be suspended until further order.  Normally, in a recovery order the Court would adjourn the proceedings until another return date after the execution of the recovery order for the Court to look at exactly what has been going on. 

2. This litigation has been extant since 2014 and orders made in 2015 seem to have largely been adhered to.  Johns J has listed it for final hearing in October which is only approximately three weeks away.  Hence, if I accede to the mother’s application to suspend all extant orders until further order, the reality is that not a lot of harm is going to be done in the interim period.

3. I am informed that the application has been served on the father by electronic means both by the mother and by the independent children’s lawyer.  It is not essential in a recovery order that the documents be served on the assumption that the respondent to the application, who is aware of the existence and obligations under an order, knows he is not complying with the order.  He may have some reasons for that, but on the evidence that I am about to mention, one wonders exactly what his position is.  If these children or either of them is ill, perhaps he should have contacted the mother to indicate that they could be returned to her where they would normally be living pursuant to the order. 

4. The parenting order that was made, and which is extant, was a consent order.  It was made on 29 May 2015 and it provides that the father spend time with and communicate with C aged two, and B aged seven, on alternate Wednesdays from 3.30 pm until 7 pm.  It follows that C is not in school, but in crèche, and B is in school. 

5. C is collected by Mr Jantic from the crèche and B from school.  At the moment the children are on school holidays, although the evidence in the affidavit does not make that clear.  The mother has given oral evidence that she delivered B to the McDonald’s store and, at that point, C was already in the father’s care as she understood that he had been collected from crèche.  B then went with his father.

6. The order provides for the return at 7 pm on the Wednesday night and the mother went to the Suburb D Police Station where Mr Jantic did not attend.  Police intervention thereafter seems to have been unsuccessful. 

7. On the following morning, 22 September, the mother received an email which she has read into the transcript this morning in which the father suggests that at C is ill and has a temperature.  None of that would justify his unilateral action in overholding the children.  He makes a complaint about police intervention in the parties’ relationship and makes a rather unusual statement that the mother was involved in some form of “stunt”.

8. Whatever the explanation might have been for him retaining the children, he has not complied with the order.  One must question the sense of all of that when there is a final trial pending in three weeks time.  It certainly indicates a lack of parental responsibility, which is one of the considerations in section 60CC of the Act, but it also shows an odd attitude towards both orders of the Court and also the responsibilities that the mother has in respect of parenting.  On the basis that I can assume that either the father was served with the application or at least he would have anticipated that the mother would have done something about it, I am not particularly troubled about the fact that there is no formal proof of service or that his procedural entitlements might have been trampled on.

9. The father is in breach of the orders and it is hard to see how he might have any reasonable excuse for being in that position.  The mother’s evidence is that there have been problems as is evident by an intervention order, by contact centre involvement at Suburb E and the sad fact that the parents have to hand their children back under the watchful eye of a police station.  It does not auger well for the future of these children.

10. Whatever may be motivating Mr Jantic, my task is to only make a recovery order if I am satisfied that it is in the best interests of the children to do so.  The obvious factor of concern in this case is that the recovery order would be executed by either Commonwealth or State police and that may be traumatic for the children, but, equally, so might the behaviour of Mr Jantic in circumstances where, his email to the mother certainly not short on telling people about his responsibilities as a parent.  He has indicated that he will do things his way.  In addition, the mother observes that there have been incidents in the past involved in what she sees as suicidal ideation and, indeed, an overdosing of one of the children on Panadol.  All of that indicates that these children should not be in the father’s care at the moment. 

11. That then leaves the question of what should happen beyond today and, for the reasons that I have already set out, the sensible solution is to suspend all extant orders on the basis that I have little confidence that Mr Jantic is going to comply with orders.

12. In his email, the father said that he was taking one or both of the children to a doctor this morning and that he would return them if they were well enough thereafter.  I do not have that confidence he will do so.  On that basis, I am satisfied that it is in the best interests of these children that a recovery order immediately issue to be executed as quickly as possible and for the children to be returned to the mother.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 September 2016.

Associate: 

Date:  5 October 2016