Bronson and Rodolfo and Ors

[2007] FamCA 295

FAMILY COURT OF AUSTRALIA

BRONSON & RODOLFO AND ORS [2007] FamCA 295

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT: Mr Bronson

RESPONDENT: Ms Rodolfo

INTERVENOR: Ms B & Mr N

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 2728 of 1997

DATE DELIVERED: 16 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 16 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Quintessential Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INTERVENOR: In person

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That Ms B and Mr N shall be granted leave to intervene in these proceedings.

2. That until further order the child, a daughter, born in October 1996 shall live with the maternal aunt and uncle.

3. That until further order the child shall:

   (a)Continue to attend at the S school, F; and

   (b)Attend upon Ms B as may be directed, for the purpose of therapeutic counselling.

4. That until further order the child shall not spend time with the mother and the mother shall be and is hereby restrained by herself, her servants and agents from:

   (a)Removing or attempting to remove the child from the care of the maternal aunt and uncle; and

   (b)Attending at the child’s school.

5. That pursuant to s 67U of the Family Law Act 1975 a Recovery Order and a warrant 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 take possession of the child a daughter, born in October 1996 and to deliver the said child to the maternal aunt and uncle forthwith, they being the persons entitled to care for the child pursuant to these orders.

6. That the time for filing further material pursuant to paragraph 4 of the orders of 23 January 2007 shall be extended to 7 March 2007, noting that the proceedings are further listed for hearing on 13 March 2007 at 10.00am.

7. That each party shall have liberty to apply to the court upon short written notice to the other parties.

8. That the father’s solicitors shall take all reasonable steps to forward to the mother a sealed copy of these orders forthwith including by forwarding them to her last known address, to Mr M, to the child’s school Principal, and to M in rural Victoria, with a letter requesting that the orders be forwarded on to the mother.

9. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

10. That pursuant to s 65DA(2) and s 62B, 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.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2728  of 1997

Mr Bronson

Applicant

And

Ms Rodolfo

Respondent

Ms B & Mr N

Intervenor

REASONS FOR JUDGMENT

1. This case started before me in June of this year as a Children's Cases Program case.  At that time the 10½-year-old child had not seen her father since the summer holidays of 2003/2004. 

2. I had the benefit of a preliminary report from a Family Consultant, Ms W.  At the end of the first day of hearing, I adjourned the case for about six months.  In the meantime the child, who was living with her mother, was to continue in therapeutic counselling with a psychologist, Ms B. 

3. The case came back before me on 15 December and it was adjourned to be heard to conclusion in February 2007.  In the meantime both the father and the mother were to have psychiatric reports prepared by psychiatrists appointed by the Independent Children’s Lawyer, and the child also was to have a psychiatrist's report prepared in relation to her. 

4. My orders in December 2006 otherwise arranged all the witness statements and affidavits that were required for hearing.  Importantly, in paragraph 10 of my orders I made a restraining order so that the child was not to be removed by anyone from Australia, or from Victoria or from a short radius of the City of Melbourne. 

5. On 23 January this year there was a mention of the case before me to ensure it was ready for hearing.  On that day the maternal aunt and uncle appeared, having filed an application to intervene in the proceedings.  The mother had also filed an amended response seeking to relocate the child to rural Victoria.  On that day I arranged for the Family Consultant to conduct further interviews with the maternal aunt and uncle.  I made no decision about the application to intervene, it being agreed that the application should be adjourned with the rest of the proceedings until 13 March when I would have the benefit of Ms W's updated report.  I would then consider what material would be needed for the hearing. 

6. In the last few days events have really overtaken that.  The mother's solicitor has filed a Notice of Withdrawal.  The mother has filed a Notice of Discontinuance of her responses.  She contacted the ICL saying that she was moving from Melbourne and leaving the child and adding that, as far as she was concerned, he, the ICL, could look after the child. 

7. Yesterday, the mother attended with the child on Ms B.  She told her that she was leaving, that she was going to study down in rural Victoria, was leaving the child, and that is all there was to it. 

8. A process server tried to serve the mother yesterday.  He observed boxes being packed at the home and was ordered in no uncertain terms to leave the property, with accompanying threats.

9. There has been no appearance by the mother in court today and I have had her called, both in the Family Court and the Federal Magistrates Court, because, although she had clearly been told she was to appear in the Family Court, the process server upon leaving the property had mentioned the Federal Magistrates Court.  Her relatives, including her sister and her mother, are here today.  Nobody has seen her at court. 

10. Material that has been tendered before me during the morning indicates that the mother attended the child's school this morning and confirmed to the school that she is leaving and leaving the child in Melbourne.  She apparently removed the child from school and it is believed she has taken her to the home of a gentleman, Mr M, who is the maternal grandmother's former partner.  No-one is certain. 

11. I am told that there has now been two notifications to the Department of Human Services in the last 24 hours.

12. I must say I am grateful for the work that has been done this morning.  The father's solicitor is the one who initiated the matter being brought back to court today.  That said, the father is not pressing that the child be placed with him at this point.  That is the only feasible way he could respond, because it would be untenable for the child at this time.  I am grateful too to the ICL for the work that he has done in the last couple of days and this morning.  And I am conscious that the Family Consultant has been in court and available to assist the parties this morning.  I am also grateful that the maternal aunt and uncle who have been here very recently at the mention, are here again today.  Everybody has responded in a way to try to work out a protective approach to the child today. 

13. I am satisfied, on the material which is necessarily sketchy at this point given that no‑one was prepared for court proceedings, that in these very difficult circumstances, the child’s current best interests would best be promoted by being placed with the maternal aunt and uncle, at least until other arrangements can be made.  To that end, I have ordered that the case come back before me, as previously arranged, on 13 March.  But there is liberty to apply in the meantime, and that liberty applies to all the parties who are present, being the father, the ICL, and the maternal aunt and uncle.  It also applies to the mother, if she has a change of heart and understands it is more advisable to participate in these proceedings and put her point of view in relation to the child’s best interests. 

14. The maternal aunt and uncle have been involved with the child - less so in recent years - but there is still apparently a bond.  I do note, amidst all the sketchy material, that it is reported that the mother told the school this morning that the child would probably live with them.  I am also told by the ICL that the maternal grandmother favours that placement, saying that the mother respects her sister and brother-in-law. All of that of course is untested evidence, but it is the only material upon which I can act at this stage.

15. I propose acceding to the request for a recovery order.  That is obviously important.  I will grant the aunt and uncle leave to intervene so they become parties, and the child can be placed with them. 

16. I propose making the orders in accordance with the Minutes of Orders dated today's date.  I direct they remain on the court file.  The court will prepare them and they will be expedited forthwith.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  16 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRONSON & RODOLFO