Che & Don

[2021] FamCA 364

FAMILY COURT OF AUSTRALIA

Che & Don [2021] FamCA 364

File number(s):	CAC 600 of 2021
Judgment of:	GILL J
Date of judgment:	2 June 2021
Catchwords:	FAMILY LAW – MISSING CHILD – contempt of court – extant recovery order – Anton Piller order to secure telephones – that it is on the cards may hold information as to the whereabouts of the child.
Legislation:	Family Law Act 1975 (Cth) s 21(2A)
Cases cited:	Talbot & Talbot (1995) FLC 92-586
Number of paragraphs:	7
Date of hearing:	2 June 2021
Place:	Canberra
Solicitor for the Applicant:	Legal Aid ACT
Solicitor for the Respondents:	Self-representing
Solicitor for the Respondents:	Self-representing
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

ORDERS

CAC 600 of 2021

BETWEEN:

MS CHE
Applicant

AND:

MR DON
First Respondent

MS TRACH
Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	GILL J
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS THAT:

1.I direct that subpoenas to attend be prepared by the Registrar of the Family Court of Australia at the Canberra Registry directed to

(a)Mr Don, born on … 1959; and

(b)Ms C, born … 1953

to attend to give evidence before this Court at 10 am on 23 June 2021.

2.I direct that the terms of the information orders directed to Mr Don and Ms C, are the orders of Judge Hughes, being Orders 11 and 12 of her orders of 21 May 2021, to be added to those as a notation to these orders.

IT IS NOTED THAT

3.Pursuant to s 67M of the Family Law Act 1975, the paternal grandmother Ms C, born … 1953, shall provide to the Court as soon as practicable such information she holds about the location of the child X born … 2020.

4.Pursuant to s 67M of the Family Law Act 1975, the paternal grandfather, Mr Don, born … 1959, shall provide to the Court as soon as practicable such information he holds about the location of the child X born … 2020.

IT IS FURTHER ORDERED THAT

5.I direct that any application for substituted service may be made before the Registrar at first instance. 

6.I direct that the Superintendent of the K Correctional Centre cause to be surrendered up to the Registrar of the Family Court of Australia telephones held by Mr Don and Ms Trach at the time of their entry into custody in that institution, that is Ms Trach, born … 2000, Mr Don, born … 1992.

7.The proceedings are otherwise adjourned for further hearing to 10 am on 23 June 2021. 

8.Ms Morrison, the Independent Children’s Lawyer, has leave to appear by audio visual link on the next occasion.

9.In the event that Mr Don is still in custody he has leave to appear by telephone from the K Correctional Centre, otherwise this is an in person appearance and the attendance of Mr Don and Ms Trach is required.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. These proceedings concern the child of Mr Don and Ms Trach, the whereabouts of whom are presently unascertained.  The circumstances of the current situation are set out in the judgment of Judge Hughes which has resulted in Mr Don being currently imprisoned for a period of three months, unless he is first to purge himself of his contempt of the Court in respect of the whereabouts of the child, and Ms Trach currently being imprisoned for a period of seven days, again pending any purging of her contempt by disclosure of the whereabouts of the child. 

2. As noted, at present it is unclear where the child might be and information has been withheld from the Court as to the whereabouts of the child.  Mr Don and Ms Trach have both said to the Court today that they have held phones, presumably in the custody of Ms Trach or belonging to Ms Trach, that contain information pertinent to the whereabouts of the child, being information directed to who it is that they assert has the care of the child at present.  They assert that those phones are currently held by the police, having been taken by the police when they were taken into custody in Suburb G. 

3. Mr Don and Ms Trach both concede that they had further telephones in their possession when they were taken into custody as a result of being found to be in contempt of the Federal Circuit Court.  They deny that those telephones contain the relevant information, saying that the relevant information is currently held on the phones held by the New South Wales Police or at least one of the phones held by the New South Wales Police.

4. An issue has arisen as to whether or not the Court should take possession of the telephones that were in the possession of Mr Don and Ms Trach at the time that they were taken into custody and provide those to the Australian Federal Police for analysis.  The purpose of such analysis and the purpose of analysis for the phones that are said to be in the custody of the New South Wales Police is to interrogate them such as to find information that they may contain as to the whereabouts of the child.  It may be observed that a concession is made by both of the parties that at least one of the phones contains that information, although they deny that the phones currently presumably held at the K Centre, by virtue of their being taken into custody, contain such information. 

5. The Court has available to it power to order that the phones be delivered into the Court’s custody in a manner analogous to orders commonly referred to as Anton Piller orders.  Authority to make such orders is alluded to in the Rules but is an inherent aspect of the Court’s authority to ensure that its proceedings are not rendered nugatory by the misbehaviour of a defendant or a proposed defendant.  Any previous uncertainty as to the authority of the Court to act in such a manner has been dispelled by the previous judgment of Justice Lindenmayer who identified the authority at s 34 in its conferral of jurisdiction upon the Court.[1]  Further, it may be observed that since Justice Lindenmayer made a determination in that matter, in which Justice Lindenmayer questioned the extent of the authority of the Court being a Court of equity or common law, it may be understood that the Court has now been determined to have always been a Court of common law and equity,[2] hence it is even clearer than in the circumstances that confronted Justice Lindenmayer that the Court has the authority to make orders analogous to Anton Pillar orders in aid of the Court’s jurisdiction and to ensure that the Court’s function and jurisdictions are not undermined. 

   [1] Talbot & Talbot (1995) FLC 92-586.

   [2] Family Law Act 1975 (Cth) s 21(2A).

6. The subject matter of this case is a currently missing child.  It is apparent that the child is missing and it is apparent and uncontested that the parents, who are currently serving a term for contempt of the Court for refusing to divulge the child’s whereabouts, have refused to divulge the child’s whereabouts.  It is also apparent from the concessions made by the parents that they have, at various times, held the information as to the child’s whereabouts on at least one telephone.  While they deny that any such relevant information might be held on other telephones it seems well on the cards that such information as might be of assistance to the police in their execution of a Recovery Order may be held on such devices. 

7. Given those current circumstances of the case, and the attendant risk that on release from custody the parents may be in a position to remove any information that might be relevant to these proceedings from those telephones, it is necessary for the Court to exercise the jurisdiction to obtain and secure those telephones and to enable their interrogation such that it may facilitate the recovery of the child whose whereabouts are currently unknown.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       2 June 2021