Blommhaart and Doha

[2008] FamCA 219

FAMILY COURT OF AUSTRALIA

BLOMMHAART & DOHA [2008] FamCA 219

FAMILY LAW – CHILDREN – Application by mother for recovery of two children of her union with the father – Order made for the father, upon service of the order upon her, to forthwith deliver the children into her care.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Ms Blommhaart

RESPONDENT: Mr Doha

FILE NUMBER: MLC 2920 of 2008

DATE DELIVERED: 2 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 2 April 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Initiating Application filed 2 April 2008 be treated as urgent and at all times be abridged for the hearing of this matter.

2. That personal service of the said Application upon the Respondent be dispensed with.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children A born on … December 2005 and W born on … June 2007 live with the mother AND THAT the issue of the time the children spend with their father be reserved.

2. That upon service of sealed copies of the orders made this day the Respondent do forthwith deliver the said children to the Applicant.

3. That the further hearing of the Initiating Application filed on 2 April 2008 be adjourned to the Judicial Duty List at 10.00 am on 14 April 2008 AND THAT any Response to the Application and Affidavit material upon which the Respondent seeks to rely be filed and served within seven days of this date. 

4. That the preparation of these Orders be expedited forthwith.

5. 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.

6. That the mother do forthwith cause to be served upon the Respondent a sealed copy of the Orders made this day together with sealed copies of the Initiating Application filed on 2 April 2008 and of her Affidavit in support also filed on 2 April 2008.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, and when transcribed a copy be placed on the court file and made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2920 of 2008

Ms Blommhaart

Applicant

And

Mr Doha

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and comprised an Initiating Application brought by the children’s mother filed on 2 April 2008.  The respondent to the application is the father. 

2. By her application, the mother seeks interim orders that the matter be treated as urgent and that all times be abridged for the hearing this day.  That, I propose to do.  She also seeks an order that personal service of the application be dispensed with. 

3. I am satisfied that until a very short time ago, the mother had no idea where the father was, he having taken their two young children, high-handedly in my view, and removed them from her care.  It is plain that his unilateral action in removing W, who was born in June 2007, as he did may well have an effect upon her general welfare as she is currently being breast-fed by the mother.  The elder child of the union is A who was born in December 2005. 

4. The mother sought an order that until further order, the two children live with her and for a Recovery Order.  Her application is supported by a well considered affidavit which provides all the relevant information required in an application of this nature.  I make the observation that some litigants in person, in my experience, have presented affidavit material barely recognisable in form and relevant content and which hardly address the Rules to be complied with in applications of this nature.

5. The mother has taken the care to carefully craft the affidavit in a way that provided all the relevant material, setting out a brief history of the relationship between herself and the father in proper and helpful form.  She then deposed to details where the two children usually live and otherwise addressed the important issue of the circumstances in which the children were removed from her maternal care.

6. The mother addressed the issue where the children “may be”, the basis for her belief and steps that have been taken by her to locate the children.  Importantly, she addressed why it was in the children's best interest that they be returned to her, and the likely impact upon them if the Recovery Order is not made.  Other factors were addressed by her.

7. It serves no good purpose for me to otherwise recite into this short extempore judgment the details set out in her affidavit and I make it clear that I rely upon those contents which I accept.  The conduct of the father in removing the children from their mother in the manner that he did, is in my view both high-handed and arrogant.  However, I do not propose to make an order in the standard terms for a Recovery Order as the mother is now reasonably satisfied as to where the children are presently being held.

8. In those circumstances, what I propose to do is to order that the mother forthwith cause to be served sealed copies of the order made this day, together with her affidavit and Application, upon the father and that upon service of the sealed copy of the order, the father deliver the said children to her.  She will then have, until further order, the care of the children who shall live with her.

9. Issues of what time should be spent by the children with their father will be reserved.  If possible, that issue can be agreed upon between the parties, and embodied into court orders which must be obeyed by the father.  I will otherwise adjourn the Application back to the Judicial Duty List on 14 April 2008.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  8 April 2008.