Chase and Vievers-Gowen

[2008] FamCA 173

FAMILY COURT OF AUSTRALIA

CHASE & VIEVERS-GOWEN [2008] FamCA 173

FAMILY LAW – CHILDREN – PACE Alert – ex parte restraining orders set aside

APPLICANT: Mr Chase

RESPONDENT: Ms Vievers-Gowen

FILE NUMBER: BRC 652 of 2008

DATE DELIVERED: 23 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 23 January 2008

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: No appearance

Orders

1. That the Orders made by His Honour Justice Burr on the 22^nd January 2008 be forthwith discharged.

1. That the name of the child, …, born … January 2000, be forthwith removed from the Airport Watch List in force at this time.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC652 of 2008

MR CHASE

Applicant

And

MS VIEVERS-GOWEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a matter that comes before me as a consequence of urgent orders made in Adelaide overnight by Burr J in which his Honour, on an oral application made by telephone communicated to him indirectly by the Registrar, dealt with urgent matters in relation to a child, born in January 2000.

2. Last night, his Honour made a temporary order restraining the respondent or her agents from removing or attempting to remove the child from the Commonwealth of Australia.  The order was made, apparently, without a filed application or filed material and on the basis of representations made by the child's father, the applicant, to a Registrar who, in turn, conveyed information to the Judge, who was persuaded to make a temporary order.

3. Amongst the orders made by his Honour was an order that the matter be listed for hearing before a Judicial Registrar or Judge of the Family Court of Australia at Brisbane at 9.45 am this morning, 23 January 2008.  It was as a consequence of that further order that the matter was referred to me.

4. The father did not appear at 9.45 am and present at the Court.  As a consequence, I conferred with the Courts Services Manager to ascertain any knowledge she had of the history of the matter and to determine what further steps should be taken.  Following my request, the Court Services Manager established contact with the father by telephone when, firstly, he confirmed that he did not appear at 9.45 am.  The Manager apparently informed him that this was a serious matter requiring his attendance and requested his attendance at Court today before me.  The father apparently informed the Court Services Manager that, whilst he understood the matter was important, he had other commitments today, including work commitments, and that he may not be able to attend Court this morning as requested by me through the Court Services Manager, and then perhaps he would be unable to attend even this afternoon.  I gather he was unable to even commit to attending Court tomorrow.  As I say, the father has not filed any application, has not filed any material, and he has not sought to prosecute the matter subsequently.

5. The Court Services Manager also sought further information from Registrar Sharon Thomas of the Adelaide Registry and Ms Thomas provided the Court Services Manager with a memorandum, which has now been placed before me and which I admit into evidence and admit as Exhibit 1, which includes information that the father was advised in the strongest possible terms that, if he did not attend Court today, the order would probably be cancelled.

   EXHIBIT #1  MEMORANDUM FROM REGISTRAR SHARON THOMAS

   Ms Thomas says that she advised him of the need to attend the Family Court at 9.45 am and she gave him further directions.

6. Ms Thomas advised the Court Services Manager that the father advised both herself and the Marshal that there were no previous proceedings. 

7. A review of the file indicates that there have, in fact, been previous proceedings in the Federal Magistrates Court, which proceedings included contested hearings before Jarrett FM on 24 February 2006.  I have before me his Honour's judgment of that day, which judgment includes specific orders that the subject child was to reside with the mother and, further, that the child be at liberty to live with the mother in Vanuatu.  The father is listed as a second respondent to those proceedings.

8. It is apparent that his Honour Burr J's ex parte restraining order runs contrary to the orders made by Jarrett FM on 24 February 2006 and the current PACE Alert may be frustrating the mother's legitimate attempts to return to Vanuatu with the child.  Of course, his Honour made that ex parte order in the absence of important information which should have been provided by the father to Registrar Thomas.

9. The father has not seen fit to appear and is indicating that he may not necessarily pursue the matter by attending Court as requested. 

10. In all the circumstances, I propose to order that the orders made by his Honour Burr J on 22 January 2008 be forthwith discharged and that the names of the respondent, and the child, be forthwith removed from the list of airport watch in force at this time.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: