SWAN & SIVANA

[2020] FamCA 1037

FAMILY COURT OF AUSTRALIA

SWAN & SIVANA [2020] FamCA 1037

FAMILY LAW – CHILDREN – Ex parte – Recovery order application in respect of one child – Application granted in respect of recovery order – Interim orders made that child live with the mother and spend no time with the father

Goode & Goode (2006) FLC 93-286

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69E, 111C, 111CD(1)(f)

APPLICANT: Ms Swan

RESPONDENT: Mr Sivana

FILE NUMBER: PAC 2699 of 2018

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr James Maspero

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

Orders

1. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born … 2016 and to return or deliver the said child to the mother MS SWAN or the mother’s nominee and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

2. Pending further order, the said child live with the mother.

3. Pending further order, the child spend no time with the father.

4. The father have liberty to apply on short notice in relation to the orders made today that are made in the present circumstances on an ex parte basis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2699 OF 2019

Ms Swan

Applicant

And

Mr Sivana

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application for determination is an application initiating proceedings commenced by the mother, Ms Swan, in relation to the child, X, born in 2016.

2. As can be seen, the child is as yet of tender years and has resided, primarily for the purposes of the present application, in the full-time care of the mother.  The respondent father, Mr Sivana, apparently presently resides in undisclosed circumstances in or about Melbourne, Victoria. 

3. Previous proceedings were before this Court in 2018. Those proceedings were commenced by the father.

4. The initial proceedings filed by him on 15 June 2018 were subsequently withdrawn by him and an order for their dismissal was made by Judge Myers in the Federal Circuit Court of Australia on 25 July 2018.  However, subsequently, the mother filed an application initiating proceedings on 7 January 2019.  In that Initiating Application, she sought orders for the recovery of the child and the child to be returned to her care.

5. The proceedings were, on 25 March 2019, transferred to this Court by order of Judge Myers in the Federal Circuit Court of Australia and were subsequently listed before a registrar of this Court on 9 April 2019.  During the registrar’s procedural hearing on 9 April 2019, the mother was represented and the father appeared unrepresented.  The registrar’s notes reveal that, on 7 November 2018, there was a judgment of the Family Court of New Zealand in City B.  There were orders made in the context of those proceedings that required the mother, by reason of orders made on 27 April 2018, to return the child to Australia.  The mother and child returned to Australia on 30 May 2018 and, subsequently, returned to New Zealand again on 13 June 2018.  There were orders, once again, for the child to be returned to Australia.  As at 9 April 2019, the registrar was informed that the mother and child were still in New Zealand, but she was required to return with the child to Australia by 21 April 2019. 

6. The mother’s application arose in circumstances where, after her return to Australia, the father had retained the child.  By consent on 15 April 2019, orders were made pending further order in the following terms, that:

   (1)The child, X, born in 2016, reside with the mother in City B, New Zealand.

   (2)The respondent father spend the following time with X:

   (a)Time on Facebook and Skype or likewise program four days a week from 3 pm to 5 pm or as otherwise agreed upon by the parties;

   (b)Twice a month commencing 27 April 2019 until 1 May 2019.  The first two days, that is 27 and 28 to be supervised by the grandparents, Mr H or Ms C, for a period of four hours each day.  On 29 X shall spend time from 9 am until 12 pm, 1 May 2019.  The father to pick up and drop off.

   (c)Thereafter, from a Saturday morning to Sunday night, the times being 10 am to 4 pm Sundays.  Dates as agreed upon by the parties. 

   (3)The mother pay the relevant airfare for the first flight to Australia for the grandparents and the child.

   (4)Thereafter, the mother pay $200 per month towards the cost of air travel between New Zealand and Australia for the grandparents and/or the child, with the balance to be paid by the father.

   (5)That neither the grandparents or the respondent consume alcohol whilst in the presence or control of the child X. 

7. The proceedings subsequently were listed before the registrar on 29 May 2019, on which day there were no appearances by or on behalf of the parties.  The matter was remitted to the judicial case management list on 13 August 2019.  On 13 August 2019, orders were made, in summary that provided for the appointment of an Independent Children’s Lawyer to represent the child, X, born in 2016.

8. The Court noted on that day that there were issues in relation to the alleged retention of the child by the father, a contention that he rejected, and that the father informed the Court that he was no longer in agreement as to the circumstances for the child provided for in interim orders made 15 April 2019.  The Court further noted that both parties should properly make such application in relation to the child as they see fit.

9. Further orders were made by consent that orders 2, 3, 4 and 5 made on 15 April 2019 be discharged.  Those orders provided a regime for the father’s time with the child in Australia.

10. By consent and pending further order, it was further ordered on 13 August 2019 as follows:

    (10)The child, X, born in 2016, return to New Zealand on 20 August 2019 and that the father do all things necessary on his part to facilitate the child’s return.

    (11)The child spend time with the respondent father as follows:

    (a)Time on Facebook, Viber, WhatsApp or phone once between 5 pm and 8 pm New Zealand time each night;  and

    (b) Each six (6) weeks, starting 6 September 2019, in Sydney, Australia, with the father from 10 am Friday until midday Sunday.

    (12)The mother and father each pay one-half of the airfares of the child and the maternal grandmother to accompany the child.

    (13)The mother, father and maternal grandmother are restrained from consuming alcohol or taking illicit drugs whilst the child is in their presence or care.

    (14)The mother and father have liberty to agree on additional visits to Australia by the child with the father to pay airfares for the child and the maternal grandmother.  For the purposes of such agreed additional visits, with the agreement for such visits to be evidenced in writing, including SMS or email communication. 

    (15)Any Watchlist order currently in place in relation to the child X born in 2016 is hereby discharged and it is requested that the Australian Federal Police give effect to this order and cause the removal of the said child’s name from the Family Law Watchlist.

11. Proceedings were then adjourned to 10 am on 22 October 2019 with the Court noting that it was the Court’s intention on the adjourned date to facilitate the intervention of the Independent Children’s Lawyer and seek further guidance from the Independent Children’s Lawyer as to the proceedings.

12. The proceedings were again before the Court on 22 October 2019.  The father had been notified of the listing, with the letter from the mother’s solicitor to the father dated 30 September 2019 marked into evidence. 

13. Orders were made that day, upon noting “there is no appearance by or on behalf of the father and noting that the Court is informed today that the mother has instructed her solicitor that the father wishes to drop these proceedings”, as follows:

    (1)The proceedings are adjourned for further judicial case management to 9.30am on Thursday, 14 November 2019.

    (2)In the event that there is no appearance by the father, notwithstanding he may be legally represented on the adjourned date, the father’s Response in these proceedings will be struck out and dismissed.

14. The Court further noted that:

    (3)In the event there is no appearance by the father on the adjourned date the mother proposes to withdraw her Initiating Application and seek that all previous parenting orders be discharged.  

    (4)The Independent Children’s Lawyer notify the father of the orders made by ordinary prepaid post to his address for service F Street, Suburb G and by email at … informing the father that in the event of his non-appearance his Response will be struck out. 

15. On 14 November 2019, there was no appearance by or on behalf of the respondent father.  The mother was represented by her solicitor.  It was ordered on that date that, upon noting there was no appearance by or on behalf of the father and upon orders made 22 October 2019, it’s ordered that:

    (1)The Respondent father’s Response filed 22 March 2019 be dismissed.

    (2)The Applicant mother be granted leave to withdraw her Initiating Application filed 7 January 2019 and that application is, accordingly, dismissed.

16. It was noted by the Court that:

    (3)The child X now resides in New Zealand pursuant to consent orders made 13 August 2019 and that country now being the place of the child’s habitual residence will have jurisdiction as to parenting orders in relation to the said child.

17. Subsequent to the orders on 14 November 2019, the present application has been filed by the mother in circumstances where the child, by agreement, has travelled to Australia in the presence of the maternal grandmother to spend time with the father for a specific occasion.  The mother provides in her affidavit in support of the present orders a history of the relationship between herself and the father, much of which is irrelevant for the purposes of the present proceedings.  The mother asserts that she was informed by the father by phone on 17 November that he would not permit the return of the child to New Zealand pursuant to the agreement between the mother and father as a consequence of the mother having another baby to another man and said:

    He is not her brother.  Don’t call him her brother.

18. The father it is asserted refused to return the child to the mother until such circumstances as the mother’s new child was removed from her household.  The mother further gives evidence that when the maternal grandmother was in Melbourne for the purposes of the father’s time with the child, the maternal grandmother observed that the father had all his belongings in his car as if he had been sleeping in his car.  The father has refused to give any details as to his circumstances or whereabouts to the mother.

19. The maternal grandmother, Ms C, in her affidavit sworn 19 November 2019, informs the Court that she has taken the child to Australia on three occasions to spend time with the father.  On two occasions in Sydney, she describes the time as a “disaster”, with the father being dominating and making ridiculous demands as to whether he was going to return X to her or not, so that they could fly back to New Zealand. 

20. She gives further evidence that the third occasion was a visit to Melbourne on 14 November 2019 for three nights.  He was to return the child to the maternal grandmother on 17 November 2019 by midday, as that was the time agreed to by the mother and the father.  The maternal grandmother said she observed that the father was driving a white motor vehicle, registration number …, registered in Victoria.  The father provided his address as D Street, Suburb E, Victoria, and his mobile phone number as ….  Upon the maternal grandmother’s inquiries, it appears that this residential address does not exist.  The maternal grandmother gives further evidence that there were significant clothing and personal belongings in the father’s car and, to her observation, it appeared that he had been living in his car.

21. She then says that the father returned the child to her on Saturday night in Melbourne, a day early.  He, on the following day, messaged the maternal grandmother asking if he could attend and say goodbye to the child.  That course was agreed to by the maternal grandmother.  The maternal grandmother asserts that, on the Sunday morning, the day that she was to fly back to New Zealand with the child, the father picked up the maternal grandmother and the child in his car, saying to her, “Can we just stop past my parents’ place, who are staying at a hotel, just so X can say goodbye?”  The maternal grandmother agreed. 

22. The vehicle stopped outside the J Hotel at the corner of K Street, Suburb L, in Melbourne. The father insisted that the maternal grandmother get out of the car, but she refused and remained in the car.  The father got out and, apparently, took the child to see his family by himself and came back down soon after.  The father got in the car and started driving to the airport.  On the way to the airport, the father’s mood changed, and he called the mother on the phone in the presence of the maternal grandmother, saying to the mother on the phone, “Why is that Muslim motherfucking kid around my daughter, that’s not her brother, never will be, and because you broke your promise to me, the kid will not be living with X and the mother.  I’m not going to send X back on the plane.  She’s living here now and I can disappear with her.” The father then hung up the phone.

23. The maternal grandmother says she attempted to reason with the father, in order that she could return to New Zealand with the child.  The father, she says, was adamant that the child was not going to be returned with the maternal grandmother to New Zealand, and he said to the maternal grandmother that, “You and the mother are just liars.”  She perceived his behaviour as threatening and she had fears for herself and the child’s safety, as he was erratic and driving dangerously.

24. The maternal grandmother says that the father stopped his car at the airport. The maternal grandmother exited the car and opened the child’s passenger door as quickly as she could.  The father then said to her, “She’s not leaving”, grabbed the maternal grandmother by the arm and said, “She’s not going.”  The child screamed and the father ripped the child from the maternal grandmother’s arms.  The maternal grandmother was able to attract the attention of an airport official and waited until the police arrived.  The maternal grandmother explained the situation that the child was to return to New Zealand and that the father was refusing to allow the child to leave. 

25. The police separated the maternal grandmother and the father, and the police informed her that, without appropriate court orders, and “because I was the grandmother and not the mother”, they were not able to enforce or to require the father to hand the child over to her.  The father left the airport premises with the child, and the maternal grandmother departed to New Zealand that afternoon. It is readily apparent that the child is in circumstances that are unknown and uncertain, and, in circumstances where the father’s behaviour in the context of these and other proceedings has been erratic and where the child has, for significant time, been habitually resident in New Zealand with the mother, it is imperative that orders be made for the safety and the best interests of the child. 

26. The child now being habitually resident in New Zealand would, otherwise, enliven the operation of the Hague Convention On Jurisdiction, Applicable Law Recognition, Enforcement And Cooperation In Respect Of Parental Responsibility And Measures For The Protection Of Children signed at The Hague on 19 October 1996. Regrettably, New Zealand is not a signatory to that convention. However, the provisions of s 111CD of the Family Law Act 1975 provide for circumstances in which this Court can exercise jurisdiction relating to a child.

27. The provisions of that section, under s 111CD(1)(f) provide that a child who is present in Australia will attract jurisdiction if:

    …the child is habitually resident in a non-Convention country and any of the paragraphs of section 69E(1)(b) to (e) apply in relation to the child.

28. The provisions of s 69E(1)(b) provide that, where the child is an Australian citizen or is ordinarily resident in Australia on the relevant day, or a parent of the child is an Australian citizen or is ordinarily resident in Australia or is present in Australia on the relevant day, the Court could exercise jurisdiction. The circumstances are that the father is ordinarily resident in Australia as at today’s date and, accordingly, the provisions of s 69E(1)(c) provide for this Court to have jurisdiction.

29. The application before the Court is an application for a recovery order that is a parenting order.  The orders to be made in the context of the recovery order are governed by the provisions of the Act relating to the best interests of the child.  The relevant principles in relation to those provisions are set out in Goode & Goode (2006) FLC 93-286.

30. Section 60B of the Family Law Act 1975 outlines the objects and principles underlying Part 7 of the Act.

31. Section 60CA of the Act provides that:

    In deciding whether to make a particular parenting order –

    and, in this case, including a recovery order –

    …the Court is to regard the best interests of the child as the paramount consideration.

32. Section 60CC then outlines the primary and additional considerations the Court must take into account in determining the best interests of the child. Those considerations are relevant in the context of this application.

    The Primary Considerations: section 60CC(2)

33. The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

34. In applying the primary considerations, the Court is required to give greater weight to the considerations set out in the second primary consideration.

35. Otherwise, the Court is required to have regard to the additional considerations set out in s 60CC(3) of the Act. The relevant considerations are as follows:

    a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

    b)the nature of the relationship of the child with:

    (i)each of the child's parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    to communicate with the child;

    ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

    d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

    f)the capacity of:

    (i)each of the child's parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

    h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    j)any family violence involving the child or a member of the child's family;

    k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

    (i)the nature of the order;

    (ii)the circumstances in which the order was made;

    (iii)any evidence admitted in proceedings for the order;

    (iv)any findings made by the court in, or in proceedings for, the order;

    (v)any other relevant matter;

    l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    m)any other fact or circumstance that the court thinks is relevant.

1. The circumstances that the Court faces today is one where the child is of very tender years.  The child has been in the primary care of the mother since birth and, by agreement with the father, was permitted to return to New Zealand to reside, subject to provisions for the father’s time in Australia with the child.

2. The child has returned to Australia on several occasions by arrangement between the parties.  This is not the first occasion that the father’s retention of the child has precipitated litigation.  The Court has significant concerns as to the whereabouts and circumstances of the child, particularly having regard to the observations of the maternal grandmother as outlined above, and the reality that the father has moved from his known residence in New South Wales to unknown circumstances in Victoria.

3. In all of the circumstances, and by reason of the urgency of this matter, the Court is satisfied that a recovery order should issue so as to facilitate the prompt return of the child to the mother or her nominee.

4. Orders are made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 November 2019.

Associate:

Date:  21 November 2019