Clines and Clines

[2007] FamCA 725

FAMILY COURT OF AUSTRALIA

CLINES & CLINES [2007] FamCA 725

FAMILY LAW - CHILDREN – Ex parte application – Recovery order - Watchlist order

Family Law Act 1975 (Cth)

APPLICANT: MRS CLINES

RESPONDENT: MR CLINES

FILE NUMBER: MLC 7760 of 2007

DATE DELIVERED: 9 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 9 July, 2007

REPRESENTATION

THE APPLICANT: The mother in Person

THE RESPONDENT: The father in Person.

Orders

1. That all orders be abridged to enable the matter to be heard this day ex parte.

2. That until further order, J born in June 1998 live with the mother.

3. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order 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 find and recover the child J born in June 1998 and to deliver the said child to the mother forthwith, she being the person entitled to have the said child live with her pursuant to the order made this day.

4. That if the father takes or attempts to retake possession of J born in June 1998 after execution of the recovery order, he may be arrested without warrant.

5. That until further order the father, by himself, him servants or agents be and is hereby restrained from removing or attempting to remove the said child J born in June 1998 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch list until further order of the Court. 

6. That as soon as practicable the mother serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

7. That a copy of the order be faxed immediately to the Australian Federal Police State Headquarters and Airport.

8. That as soon as practicable the mother serve the father with the following documents :

   (a)form 2 application filed this day;

   (b)affidavit of the mother sworn and filed this day;

   (c)sealed copy of this order.

9. That the further hearing of the application be otherwise adjourned to 9:45 am on 2 August 2007 and given priority on that day. That a copy of the order be faxed immediately to the Australian Federal Police State Headquarters and Airport.

10. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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.

11. That the reasons for judgment this day be transcribed and that copies be made available to the parties

12. That the preparation of these orders be expedited forthwith.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7760  of 2007

MRS CLINES

Applicant

And

MR CLINES

Respondent

REASONS FOR JUDGMENT

1. This case is brought ex parte by Mrs Clines, who is the mother of J, born in June 1998.  J is nine and in good health. 

2. The father lives in New Zealand and the parties commenced a relationship there in 1997.  It was a tumultuous relationship;  the mother's evidence is of extreme violence directed towards her, in the presence of her two children from a previous relationship.

3. On 6 July 1998, the mother obtained a protection order in the District Court in Christchurch.  On 5 June 2001, the order was varied to include J.  On 10 October 2002 a parenting order was made in the District Court in Christchurch, giving the mother custody of J and allowing her to relocate with him to Australia.  On 25 October 2006 a final order was made in the Federal Magistrates Court at Melbourne, providing for the mother to acquire an Australian passport for J.  Copies of all the relevant orders are before the Court. 

4. The mother relocated with J and her twin daughters in January 2003.  The father had some sporadic phone contact.  He has seen J occasionally, when he has been here in Melbourne. 

5. On Thursday, 5 July 2007, the father attended at the mother's home on a pre‑arranged visit.  He was not in an even temper.  He wanted to drink alcohol, contrary to the contact orders of the New Zealand court.  The father threatened the mother and she insisted he leave, which he did.  He returned to collect J last Friday, being 6 July.  J was to be returned on Sunday, 8 July.  He was not returned. 

6. The mother has done her best to enlist help from Victoria Police, initially fairly successfully.  If what she deposes is correct, when she sought further assistance she was met with advice which could only be said to demonstrate a complete misunderstanding of the relevant Australian law.  She has spoken briefly with J on the phone, who sounded very stressed.  It appeared to her that the father has been drinking.  J sounded very anxious.  He spoke of crossing borders.  The father was abusive.  The father rang the mother again and yesterday said he would not bring J back until he returns to New Zealand. 

7. I am satisfied that orders need to be made to ensure J’s protection from emotional and physical harm and to return him to the security of his mother's care, with whom he has always lived.  Other matters including the question of what time (if any) he should spend with his father, can be considered later.  Orders should also guard against the potential for the rather to remove J from Australia.

I certify  that the preceding
7 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the            day of             2007.

…………………………………………
Associate.

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