Abbey and Walburn

[2013] FCCA 716

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABBEY & WALBURN [2013] FCCA 716

Catchwords:
FAMILY LAW – Children – parenting orders – location order – best interests of the children considered – where family violence order in force – information not to be disclosed to the applicant personally.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 67K, 67L, 67M, 67N, 67P

Applicant: MR ABBEY

Respondent: MS WALBURN

File Number: SYC 3220 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 July 2013

Date of Last Submission: 1 July 2013

Delivered at: Sydney

Delivered on: 1 July 2013

REPRESENTATION

Solicitor for the Applicant: Ms Cantrall

Solicitors for the Applicant: Legal Aid NSW

The Respondent: No appearance

ORDERS

1. Leave granted to proceed ex parte.

2. As provided by subsection 67N(2) of the Family Law Act 1975 the Chief Executive Officer of Centrelink is to furnish to the Registry Manager of the Federal Circuit Court of Australia at Sydney information about the location of the children [X] born [in] 2011 and [Y] born [in] 2013 that is contained or comes into the records of Centrelink.

3. As provided by subsection 67P(1) of the Family Law Act, leave is granted to disclose the information provided to the Registry Manager of the Federal Circuit of Australia at Sydney and the Registry Manager is granted leave to disclose that information to the Applicant’s legal adviser, Ms Claire Cantrall of Legal Aid NSW for the purpose of arranging service.

4. The information provided to the Registry Manager is not to be disclosed to the Applicant personally.

5. The Application is stood out of the list with liberty to restore on seven (7) days’ notice.  

IT IS NOTED that publication of this judgment under the pseudonym Abbey & Walburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3220 of 2013

MR ABBEY

Applicant

And

MS WALBURN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of two children to proceed ex parte for a Location Order. The two children are:

   a)[X], who was born [in] 2011; and

   b)[Y], who was born [in] 2013.

2. The Father does not know where the Mother and the children are, because the Mother left him in March of this year whilst he was out, taking the two children with her. He does not know where they are living.

Background

1. The Father was born [in] in Somalia, and is now 49 years of age. The Mother was also born in Somalia. The Father deposes in his affidavit that she was born around [omitted] 1979 and is therefore 34 years of age.

2. The Father arrived in Australia in around 1989 and is now an Australian citizen. He travelled to Somalia in early 2009, where he met the Mother. He married her on [omitted] 2009.

3. The parties separated in March 2013.

4. The Mother obtained a Final Apprehended Domestic Violence Order against the Father at [omitted] Local Court on 23^rd May 2013. The order is in force for 12 months. The Mother and the two children are named as the protected persons.   

5. The Father deposes in his affidavit that he consented to the Order on a “without admissions” basis.

6. The Father also deposes that he is aware that the Mother is in receipt of a Centrelink benefit for the children. The Father’s solicitor,

   
   

   Ms Cantrall, tendered a copy of a letter dated 20^th June 2013 from an Information Officer of Centrelink acknowledging service of documents and advising:

   Please ensure that the order states the name and date of birth of the children.

   Upon receipt of the Order, Centrelink will respond to the Court within 14 days.

Submission

1. The Father expresses concern that the Mother may not have the capacity to keep up with the children’s immunisations or other matters relating to the children’s care, as she does not read or write English. He wishes to mediate with the Mother about spending some time with the children, for around four hours twice a week.

2. The Father denies that he is a threat to the children. He has had both legs amputated below the knee and his right arm was amputated at the shoulder after an accident involving a train at [omitted] Railway Station in 1997.

3. There are no parenting orders in force.

The law to be applied

1. Section 67K of the Family Law Act 1975 (Cth) sets out a list of the persons who may apply for a location order. Apart from a person in whose favour a parenting order is made and a grandparent of the child, the list includes at s.67K(1)(d):

   any other person concerned with the care, welfare and development of the child.

2. Section 67L of the Act provides that, in deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration. A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC.

3. Section 67M allows the Court to make a location order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location.

4. Section 67N allows the court to make a Commonwealth Information Order if it is satisfied that the child’s location is likely to be contained in, or come into, the records of a Department or Commonwealth instrumentality.

5. Section 67P allows the Registry Manager of the court to disclose the information obtained under a location order to:

   a)the Registry manager of another court; or

   b)an officer of the court; or

   c)a process-server engaged by the court; or

   d)the applicant’s legal adviser or process-server, with the leave of the court.

6. However, s.67P(2) provides:

   (2)Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order.

Conclusions

1. I am satisfied that the Father has standing to apply for the order, as person concerned with the children’s care, welfare and development.

2. I am satisfied that it is in the children’s best interests for the order to be made, although this has involved a balancing exercise between the primary considerations in s.60CC(2):

   (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.

3. The Court is required by s.60CC(2A) to give greater weight to the considerations set out in paragraph (2)(b) when applying those considerations. Clearly, it is a matter of concern that the children are named as protected persons in an Apprehended Domestic Violence Order, and it does not follow that the Court will make a parenting order in favour of the Father without weighing up the need to protect the children from harm. Consequently, the parenting orders sought by the Father in his Application will not be made at this stage.

4. Similarly, the information about the children’s whereabouts will not be disclosed to the Father (s.67P((2)).

5. However, in all the circumstances, I am satisfied that a Commonwealth Information Order should be made, directed to Centrelink. The information should be disclosed to:

   a)The Registry Manager of the Sydney Registry of the Court;

   b)Any officer of the Federal Circuit Court for the purpose of that officer’s responsibilities or duties; and

   c)The Father’s legal adviser, Ms Clare Cantrall of Legal Aid NSW.

6. The information will not be disclosed to the Father personally.

7. The Application seeks that the information obtained under the Location Order should be furnished to the Family Court of Australia at Sydney and that leave should be granted to disclose that information to the Registrar of the Family Court at Sydney.

8. The Application is clearly incorrect. The information should be furnished to the Federal Circuit Court of Australia at Sydney. The appropriate officer to whom the information should be provided is the Registry Manager of the Court (see s.67P(1)).

9. The Orders will issue and the Application will stand out of the list with liberty to restore on seven days notice.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  3 July 2013