Zin & Yijun (No 2) [2022] – Recovery Order for Children’s Return to Australia in Family Court Case

SCHONELL J:

1. On 5 July 2022, the applicant father (“the father”) filed an Application in a Proceeding because of the failure of the respondent mother (“the mother”) to comply with court orders made on 11 May 2022.
2. These reasons need to be read in conjunction with my reasons delivered in Zin & Yijun [2022] FedCFamC1F 313.
3. In that judgment, I recorded the following:
   1. On 31 March 2022, the husband filed an Initiating Application seeking interim orders for the immediate return of the parties’ two children, X born in 2015 and Y born in 2020 to Sydney. The filing arose in circumstances where the wife had, with the consent of the husband, travelled to South Korea for a holiday but had thereafter indicated to the husband that she did not intend to return to Sydney with the children.

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4. The wife did not seek any interim orders in relation to the children either in her Response or in her Case Outline.
5. Her counsel advised the Court that she opposed the children’s return to Australia, contending that the issue of return should await determination at a final hearing.
6. The wife through her counsel indicated that if the Court did make an order for return then she did not take issue with the orders as proposed by the husband in Exhibit “A” save that if a return order was made then she sought a three month period (husband’s proposed Order 14), that she would need seven business days to comply with the requirement to obtain the necessary passports (husband’s proposed Order 15), and that the amount of maintenance should be $1,000 per week (husband’s proposed Order 24).

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49. As indicated earlier, each of the counsel who appeared conceded that this Court has jurisdiction to make the orders as sought. The Court’s jurisdiction arises pursuant to s 69E of the Act. The wife’s counsel conceded that the children are habitually resident in Australia.

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72. In relation to time arrangements, I am not being asked by the husband to make orders for time. I am merely being asked by the husband to make an order for the return of the children to Australia. It is proposed that the time orders would be addressed at an interim hearing upon the children’s return.
73. I am of the view that it is in the best interests of these children for them to be returned to Australia as soon as possible. The wife seeks final orders from this Court as to parenting matters and thus she considers that this is the appropriate jurisdiction in which to hear the parenting aspects of the matter. This Court can address the questions of risk raised by the wife and a proper investigation of the allegations that she raises in relation to the husband and the possible risk he poses to the children more efficiently if the children are in Australia. The husband can be more properly and efficiently involved and engaged in any necessary psychological intervention that the child X needs and be involved in the therapy if considered necessary more efficiently if it occurs in Australia rather than South Korea. The children can be, if thought necessary, be seen by an ICL and ultimately an expert for the preparation of a report more efficiently if the children are in Australia rather than South Korea. The maintenance of the children’s relationship with their father can be more properly done with the children in Australia rather than in South Korea.

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79. The wife contended that if orders were made for the children to be returned that she would require three months. It was contended from the bar table that this was necessary to make proper arrangements for the children, to continue the therapy that the eldest child is undertaking in South Korea and in relation to matters of schooling
80. I am not satisfied that a three-month delay in the return of these children is appropriate. Beyond an assertion by her counsel, there is no evidence as to why the wife needs three months. The husband sought 28 days and I am of the view that it is appropriate that these children be returned sooner rather than later. It is really a matter of striking a balance and accordingly, I will make an order that the wife return the children to Australia within five weeks.
81. I will make the proposed amendment sought by the wife to the husband’s proposed Order 15 giving her 7 days to apply for passports.

4. In my orders made 11 May 2022, I ordered that the mother was to return the children to Australia within 35 days of the making of the orders. Accordingly, the mother was to return the children to Australia by 15 June 2022.
5. In the father’s affidavit sworn 4 July 2022, the father identifies that the mother has not returned the children to Australia. Annexure C to the father’s affidavit is a letter from the mother’s lawyers dated 18 May 2022, with such letter postdating the making of my orders. In that letter, there is a statement to the following effect:

We are instructed that the expired passport is [Y’s] one not [X’s] passport; however, [X] requires applying for resident return visa to return to Australia.

It then says:

With respect to compliance with court order 13, our client is fully aware of the gravity of the court order. We are instructed that when your client called on 13^th and 17^th of May 2022, X was holding our client’s IPad. …

6. I am satisfied, in light of that correspondence, that the mother has had notice of the orders requiring her to return the children to Australia. The father gives evidence that on or about 23 May 2022, he attended the South Korean Embassy to obtain passport records for the children. He gives evidence that there is a current valid passport for both X and Y. The father also gives evidence that he has renewed X’s permanent residency status in Australia.
7. The father gives evidence that on 20 June 2022, the mother’s former lawyers informed his solicitors by email that they no longer acted on behalf of the mother. A Notice of Ceasing to Act was filed and served on 28 June 2022.
8. The father gives evidence that apart from one video call on 24 May 2022, he has received no answer to calls that he has made to the children pursuant to the existing orders.
9. The father gives evidence as follows:
   34. My solicitors informed me, and I verily believe, that the Central Authority in Australia has advised that once the application pursuant to the Hague Convention is accepted, it will need to be translated to Korean for the Central Authority in South Korea. This is estimated to take three weeks. After that time, the application will be forwarded to the South Kore] Central Authority and the process will be in their hands to enforce the application pursuant to the Hague Convention. I am advised by my solicitors, and verily believe, that this is only subject to the Australian Central Authority first accepting my application pursuant to the Hague Convention. I confirm that the Central Authority has requested further information from me on two occasions, which have now been provided by way of further affidavits to the Central Authority. I confirm that I am now awaiting a further response from the Australian Central Authority as to the status of my application.
10. I am satisfied that the mother has not complied with orders seeking the return of the children to Australia.
11. The father’s counsel sets out in his Case Outline that the mother has been served with the father’s Application and affidavit as well as the Orders made on 5 July 2022 for the mother to file a Response and affidavit.
12. I am satisfied that the mother has had notice of the orders that the father seeks.
13. The father seeks various procedural and interlocutory orders for the return of the children. Those orders include an order that the father have sole parental responsibility in relation to the children and that the father be permitted to remove the children from South Korea for the purposes of returning them to Australia.
14. The ICL indicated that she agreed with the orders as sought by the father.
15. There was no appearance by the mother.
16. I have previously determined that it was in the best interests of the children that they be returned to Australia. Apart from the effluxion of time (at most some 2 months), no new issue has arisen that would suggest that there should be reconsideration of that determination.
17. There is no evidence before me that suggests that the factual assertions addressed by me in my judgment have changed other than despite agreeing to return, the mother has not returned and she is no longer facilitating any contact between the children and the father.
18. The mother’s refusal to comply with orders and her refusal to foster any relationship between the father and the children leads to a conclusion, at this stage on the basis of the current evidence, that the mother will not promote any relationship between the children and their father. I further note that orders made in the past, which were according to the mother’s counsel the subject of agreement, have not been complied with.
19. There is no evidence before me that would invite a reconsideration of the determination that the children should be returned to Australia.
20. The orders the father currently seeks are to facilitate that determination.
21. The mother can of course obviate the necessity for such orders by complying with the existing orders for the return of the children to Australia. It is a matter that is very much within her domain and control as to whether or not she wishes to avoid the outcome as proposed by the father’s orders. Should she not do so, then the orders will enable the father to travel to South Korea and to take the children into his care and bring them back to Australia.
22. I propose to make the orders as sought by the father as being in the best interests of the children.