CAMPBELL & STACK

[2011] FamCA 937

FAMILY COURT OF AUSTRALIA

CAMPBELL & STACK [2011] FamCA 937

FAMILY LAW – CHILDREN – Application for Recovery Order – where Mother makes no appearance – where it is in child’s best interests that child be returned voluntarily – where there is indication Mother may have relocated without notifying the Father

Family Law Act 1975 (Cth)

APPLICANT: Mr Campbell

RESPONDENT: Ms Stack

FILE NUMBER: BRC 4476 of 2007

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13 December 2011

Orders

1. The Father’s Application in a Case filed 9 December 2011 be granted.

Orders Until Further Order

1. That, pursuant to s 67N of the Family Law Act 1975, the Secretary or General Manager of Medicare Australia (‘Medicare’) provide the Registry Manager of the Family Court of Australia at Brisbane (‘the Registry Manager’) such information that is contained in the records of Medicare or that Medicare may obtain in relation to:-

   (a)       The whereabouts of:

   (i)The Respondent Mother Ms Stack born … 1960;

   (ii)The said Child, B (male) born … 1998;

   (b)       Any drivers licence number of a licence in the name of the Respondent           Mother;

2. That the Secretary or General Manager of Medicare not be required to search the records of Medicare more than once every month during the currency of the order which shall be one year from the date hereof.

3. That, pursuant to s 67N of the Family Law Act 1975, the General Manager of Centrelink (‘the Agency’) provide to the Registry Manager of the Family Court of Australia at Brisbane such information that is contained in the records of the Agency or that the Agency may obtain in relation to:-

   (a)       The whereabouts of:

   (i)the Respondent Mother Ms Stack born … 1960;

   (ii)the said Child, B (male) born … 1998;

   (b)       Any bank account (including branch and account number) that any         payments by the Agency to the Respondent Mother and the said Child        may be made;

   (c)       Any driver’s licence number of a licence in the name of the Respondent          Mother; and

   (d)       Any passport number of any passport in the names of the Respondent   Mother and the Child and the country issuing the passports.

4. That the General Manager of Centrelink not be required to search the records of the Agency more than once every month during the currency of this order which shall be for one year from the date hereof.

5. That, pursuant to s 67M of the Family Law Act 1975, the General Manager of the Residential Tenancies Authority (“RTA”) provide the Registry Manager of the Family Court of Australia at Brisbane (‘the Registry Manager’) such information that is contained in the records of Medicare or that Medicare may obtain in relation to:-

   (a)       The whereabouts of:

   (i)the Respondent Mother, Ms Stack born … 1960;

   (ii)the said Child, B (male) born … 1998;

   (b)       Any drivers licence number of a licence in the name of the Respondent           Mother; and

   (c)       Any passport number of any passport in the names of the Respondent   Mother and the Child and the country issuing the passports.

6. That the General Manager of the RTA not be required to search the records of the Commission more than once every month during the currency of the order which shall be one year from the date hereof.

7. That, pursuant to s67M of the Family Law Act 1975, the Director-General Queensland Health provide the Registry Manager of the Family Court of Australia at Brisbane (‘the Registry Manager’) such information that is contained in the records of Queensland Health or that Queensland Health may obtain in relation to:-

   (a)        The whereabouts of:

   (i)the Respondent Mother Ms Stack born … 1960;

   (ii)the said Child, B (male) born … 1998;

   (b)       Any drivers licence number of a licence in the name of the Respondent           Mother; and

   (c)       Any passport number of any passport in the names of the Respondent   Mother, and the Child and the country issuing the passports.

8. That the Director-General of Queensland Health not be required to search the records of Queensland Health more than once every month during the currency of the order which shall be one year from the date hereof.

9. That, pursuant to s67M of the Family Law Act 1975, the Director-General of the Department of Transport, Queensland provide to the Registry Manager of the Family Court of Australia at Brisbane such information that is contained in the records of the Department of Transport or that the Department of Transport may obtain in relation to:-

   (a)       The whereabouts of:

   (i)the Respondent Mother Ms Stack born … 1960;

   (ii)the said Child, the child B (male) born … 1998;

   (b)       Any drivers licence number of a licence in the name of the Respondent           Mother;

   (c)       Any vehicle registration details of a vehicle in the name of the   Respondent Mother.

10. That the Director-General of the Department of Transport, Queensland not be required to search the records of the Department of Transport more than once every month during the currency of this order which shall be for one year from the date hereof. 

11. That, pursuant to s67M of the Family Law Act 1975, the Director-General of the Department of Education and Training, Queensland provide to the Registry Manager of the Family Court of Australia at Brisbane such information that is contained in the records of the Department of Education and Training or that the Department of Education and Training may obtain in relation to:-

    (a)       The whereabouts of:

    (i)the Respondent Mother Ms Stack born … 1960; and

    (ii)the said Child, B (male) born … 1998; and

    (b)       Any details relating to the enrolment of the said Child in a Queensland            State School.

12. That the Director-General of the Department of Education and Training, Queensland not be required to search the records of the Department of Education and Training more than once every month during the currency of this order which shall be for one year from the date hereof.

13. That leave be granted to the Registry Manager to disclose the information provided to the Registry Manager by:-

    (a)       the General Manager or Secretary of the Medicare pursuant to orders 2          and 3 above;

    (b)       the General Manager of Centrelink pursuant to orders 4 and 5 above;

    (c)       the Director-General of the RTA pursuant to orders 6 and 7 above;

    (d)       the Director-General of Queensland Health pursuant to orders 8 and 9            above;

    (e)       the Director-General of the Department of Transport pursuant to orders          10 and 11 above;

    (f)       the Director-General of the Department of Education and Training       pursuant to orders 12 and 13 above.

14. Should the Respondent Mother not return the child, the child Campbell, born 1 July 1998 (“the children”) to the Applicant Father by 9.00 am Monday 19 December 2011, a Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

15. Such persons are authorised and directed to find and recover the child, B, born … 1998, and for that purpose, with such assistance as they require 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 child may be found.

16. The child is to be delivered to the Applicant Father at C Street, Suburb D in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant Father.

17. The Recovery Order not be executed before Monday 19 December 2011.

18. On provision of information by the Applicant Father that the child has not been returned voluntarily to his care the Recovery Order be executed as soon as possible thereafter.

19. The Recovery order remains in force for a period of six months.

20. That the applicant pay within 48 hours to the cashier of the Family Court registry at Brisbane or by mail addressed to the Collector of Public Monies at the Family Court registry at  the sum of $80.00 on account of service fees.

21. That the requirement to serve any application or order is stayed until such time as the fee is paid.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4476 of 2007

Mr Campbell

Applicant

And

Ms Stack

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the Applicant Father, Mr Campbell’s, Application for a Recovery Order to be issued with respect to the child B, born in 1998. There has been no appearance by the Mother on this Application.

2. Shortly stated, the relevant background is that the parties reached consent Orders on a final basis which were made by Bell J on 8 December 2010. Those Orders provided, inter alia, for the children, E, born in 1995, and B, born in 1998, to live with the Father and for the Father to have sole parental responsibility. Those Orders provided for the child to spend time with the Mother on a graduated basis such that following July 2011, the Mother and the child were to determine the frequency and duration of their time together, but it would be at least once monthly. In respect of E, she was to spend time with her mother at any time the child was spending time with the Mother as E might desire.

3. On 28 November 2011, the Father filed an Application in a Case seeking leave to institute further proceedings to ensure the return of the child to the Father’s care. By way of supporting affidavit filed that same day, the Father deposed to facts including that the Mother had contravened the final consent Orders by refusing to take the child to school for the then previous eight days. Justice Bell made Orders on 7 December 2011, granting the Father leave to institute further proceedings in relation to children’s issues. Thus, on 9 December 2011, the Father filed the current Application for a Recovery Order with respect to the child. In support of the current Application, the Father has deposed to the fact that the Mother continued to refuse to take the child to school for the final three weeks of his schooling.

4. The Mother has also refused to return the child to the Father (E remains in the care of the Father) despite the terms of the consent Orders made by Justice Bell on 8 December 2010.

5. The Father informs me that the Mother was made aware of the Orders made on 7 December 2011 and indeed he received correspondence from the Court with respect to the proceedings. I infer that the Mother likewise was forwarded the relevant information by the Court, however the Father expresses some doubt as to whether the Mother remains living in her known address.

6. The Father informs me from the Bar table that the child reportedly has told one of his friends of plans for the child to be relocated and to commence attending a different school at the commencement of next year.

7. Because of some doubts about the Mother’s present whereabouts, I granted the Father leave to amend his current Application to include an Application for a Location Order. I recorded in the hearing that the Mother has apparently communicated with the Court to the effect that she is unable to attend today’s hearing.

8. The Court views, rightly, with some seriousness compliance by parties with its Orders. On the face of it, the Mother has failed to comply with the final Orders made on 8 December 2010, and on the evidence of the Father, it would appear that the Mother is not acting in the child’s best interests by keeping him away from the final weeks of his school term leaving aside the question of the effect of the parenting Orders referred to.

9. In those circumstances, I am satisfied that the Father has the relevant rights to be an Applicant for a Recovery Order under s 67T of the Family Law Act 1975 (Cth) (“the Act”) within the meaning of s 67Q of the Act and that a Recovery Order should be made.

10. I therefore make a Location Order in terms and with respect to the Recovery Order, I raised with the Father during the course of the hearing that it may be counterproductive for there to be the arrival of police officers to take the child into their custody immediately and then to return him to the Father. I therefore have the hope and expectation that by issuing a Recovery Order to lie in the registry until 9.00am on Monday next, the Mother, served with the relevant Order and hopefully also these Reasons, will see the common sense of avoiding the trauma to the child that would potentially be occasioned by the arrival of police officers to take him into their care.

11. I therefore make both the Location Order and the Recovery Order in the terms set out at the commencement of these Reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 13 December 2011

Associate: 

Date:  13 December 2011