Carey and McStevenson

[2012] FamCA 581

FAMILY COURT OF AUSTRALIA

CAREY & MCSTEVENSON [2012] FamCA 581

FAMILY LAW -CHILDREN - Recovery Order - Where Applicant Mother requests urgent ex parte recovery Order - where the Mother deposes to significant family violence involving the Father - where a friend of the Father's has been charged with interfering with one of the children

APPLICANT: Ms Carey

RESPONDENT: Mr McStevenson

FILE NUMBER: TVC 1188 of 2011

DATE DELIVERED: 25 July 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Kent J

HEARING DATE: 25 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Purnell

SOLICITOR FOR THE APPLICANT: Groves & Clark

Orders

1. The Mother be granted leave to proceed on an urgent ex parte basis.

2. In accordance with r 1.14 of the Family Court Rules 2004 (Cth), time for service of the Application in a Case and the Affidavit of the Applicant Mother filed by the Applicant Mother on 24 July 2012 be abridged.

3. A Recovery Order issue 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.

4. Such persons are authorised and directed to find and recover C, born … October 2002, and L, born … April 2004 (“the children”), 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 children may be found.

5. The children are to be delivered to the Applicant Mother, Ms Carey, at Property A in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant Mother.

6. The Recovery order remains in force for a period of twelve months.

Orders Until Further Order

1. The Mother ensure that the children not have any contact with the Father either directly or indirectly.

2. The Father not contact or have anyone else either directly or indirectly contact the Mother or the children save and except for the purpose of giving notice pursuant to paragraph 19 hereof.

3. The Father not go near or attend or have anyone else either directly or indirectly go near or attend upon where the Mother and the children reside from time to time.

4. The Father not go near or attend or have anyone else either directly or indirectly go near or attend upon where the Mother works from time to time.

5. The Father not go near or attend or have anyone else either directly or indirectly attend or go near where the children may attend school from time to time.

6. The consent Order made on 14 November 2011 between the parties be set aside.

7. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of C, born … October 2002, L, born … April 2004, K, born … June 2008, and D, born … October 2009, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.

8. Forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

9. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

10. Within 48 hours of notification to the parties of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

11. The Mother and the Father comply with any lawful direction of the Independent Children’s Lawyer in relation to the preparation of a Family Report should one be requested.

12. The proceedings be adjourned to a date to be fixed.

13. The parties have liberty to apply on the giving of seven (7) days’ written notice to the other parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carey & McStevenson 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 TOWNSVILLE

FILE NUMBER: TVC 1188 of 2011

Ms Carey

Applicant

And

Mr McStevenson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a parenting proceeding concerning four children, namely C, born in October 2002, L, born in May 2004, K, born in June 2008, and D, born in October 2009. The hearing before me today proceeds on an ex parte basis in circumstances where the Respondent Father is yet to be served.

2. The Initiating Application was filed by the Applicant Mother on an urgent basis yesterday, supported by an affidavit of the Applicant Mother likewise filed yesterday. Shortly stated, the parents were in a relationship between about September or October 2001 until final separation in February of last year. It seems that initially following that separation, the older children, C and L, resided primarily with the Father whilst K and D, the two younger children, always remained living primarily with the Mother.

3. Consent Orders were made by the parties on 14 November 2011, which, in broad terms, provided for the two older children to spend time with their parents on a week-about basis, with the two younger children primarily residing with the Mother.

4. The relevant background to the current application is that the Father historically has been associated with a friend known as Mr J. It seems, on the Mother’s material, which of course is untested at this stage, that in about April 2011, L commenced to make troubling disclosures about the conduct Mr J. Mr J, at that stage, was residing in the same residence it seems as the Respondent Father and was present whenever the children were present.

5. The Mother outlines in her affidavit filed yesterday that her consent to the Orders made on 14 November 2011 was a reluctant consent. It appears that recently, on 9 May 2012, L made concerning disclosures about Mr J and the position was reached that in May 2012, Mr J was charged with criminal offences concerning L, including indecent dealing or indecent treatment of a minor.

6. Following Mr J being charged, there was a requirement imposed by the Department of Communities, Child Safety and Disabilities that the Respondent Father was not to bring L into contact with Mr J. The Mother’s affidavit in support of this application presents at least a prima facie case that the Respondent Father has not complied with the requirement not to bring L into contact with Mr J. It is axiomatic, therefore, that there is a significant risk to at least L’s physical and psychological safety if she comes into contact with Mr J. Relevantly, following the charge on 11 May 2012, the Respondent Father had not had any contact with the children until this week.

7. On Monday of this week, C and L were removed by the Respondent from their school. The Father did not give any notice to the Mother that he proposed to take that course, and the Mother deposes in her affidavit to having had no contact with the Father since then.

8. Initially when filed, the Application sought a location Order as well as a recovery Order, however I am informed from the bar table that the solicitors for the Mother are now aware of an address for the Father and no longer pursue the location Order that was originally sought.

9. The Department of Communities, Child Safety and Disabilities have been notified of the Respondent Father’s conduct, and no doubt will be involved in the matter.

10. In circumstances where the Respondent has not yet been served and this application is heard on an ex parte basis, it is obvious that the allegations mounted by the Mother in her affidavit are untested, but, nevertheless, the Court must have regard to the children’s best interests and act conservatively in the respect that if there is the prospect that the Mother’s allegations are well-founded, there are serious concerns for obviously the health and welfare of L in particular. On that basis, I make Orders until further Order in terms of the Orders sought on an interim basis in the respects indicated in exchanges with the Mother’s legal representatives during the hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 25 July 2012.

Associate: 

Date:  26 July 2012