Codelle and Codelle

[2008] FamCA 1033

FAMILY COURT OF AUSTRALIA

CODELLE & CODELLE [2008] FamCA 1033

FAMILY LAW – CHILDREN – With whom a child lives – Return of child – Stay of recovery order

Family Law Act 1975 (Cth)

APPLICANT:  Ms Codelle

RESPONDENT:  Mr Codelle

FILE NUMBER: PAC 5101 of 2008

DATE DELIVERED: 10 November 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: LOUGHNAN JR

HEARING DATE: 10 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berry

SOLICITOR FOR THE APPLICANT: Berry Buddle Wilkins

FOR THE RESPONDENT: Respondent in Person

Orders

1. The father forthwith cause R born … October 1996 to return to the care of the mother.

2. That the Marshal of this Court, all officers of the Australian Federal Police and of each of the State and Territory Police with such assistance as they may require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where there is, at any time, reasonable cause to believe the child may be found.

3. The operation of order 2 is stayed for a period of 7 days.

4. The balance of the interim parenting proceedings and the contravention application are adjourned to the Judicial Registrar duty List at 9.30 a.m. on 15 December 2008.

5. The costs of the wife of and incidental to today are reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5101  of 2008

MS CODELLE

Applicant

And

MR CODELLE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, R, who was born in October 1996 and is 12 years of age.  The mother is 36.  I do not know how old the father is. They were married in 1993 and separated in August of 2001.  They have three children, N, R and J, who are 16, 12 and 9 years of age respectively. 

2. Federal Magistrate Scarlett made some orders after handing down judgment on 25 January 2005. The orders were made on 14 February 2005 providing for the children to live with the mother, the oldest child to have time with the father in accordance with her wishes and time between the father and R and J to be on alternate weekends and holiday periods and special days.

3. The matter comes to Court because on 12 October 2008 the mother went to collect the children from the father. She was able to collect J but R was not provided.  She says that there was a conversation with R whereby he said that his father told him that at 12 years of age he would be able to make his own decision. The mother said words to the effect, "That's nice.  Get in the car."  And the father said that he supported the boy's decision. That is the way things have been, at the cost of some embarrassment to the child in terms of school clothes and other things, in the meantime.

4. The mother has filed an application for a recovery order and a contravention application arising out of that incident and in relation to some earlier incidents including, December last year.

5. The father has not filed material in response and that is his right, at least in relation to the contravention application. Unfortunately, however, he has made no application in relation to the child. He was here earlier today. The matter was stood in my list. Not all that long ago I asked the father to hang around and told the parties that I would hear their matter today. When I called the matter on about 10 minutes ago the father could not be found, he has switched his phone off and he cannot be found in the precincts of the Court.  I have now been asked to deal with the matter in his absence and in those circumstances, I think that is appropriate.

6. There is no issue in this case. The unusual feature of the case is that there is no contradictor. It is not as though the father is seeking an order that the child live with him.  He is just standing in breach of a Court order. The current order is the order that was made in 2005 and the father does not want any different order. He does not have legal representation and maybe that is the source of the problem.  I do not know. I understand that he opposes the child returning to the mother but I have no choice but to return the child. 

7. When the matter was mentioned earlier today he mentioned something about the boy running away, if forced to return. There is no evidence of that sort of thing having happened in the past. 

8. There is no provision of the law of practice that says 12 year old children can make their own mind up about where they will live. Quite the contrary; 12 year old children do not get a say in anything in our community. They do not have a say in whether they go to school, whether they drive, whether they drink alcohol, whether they take drugs, nothing. The 2005 order provides for the wishes of the parties’ eldest daughter to be influential and perhaps the father thinks that that is a matter automatically implied by the law.

9. A recovery order is sought and should issue. The aspect of the recovery order that directs the authorities take certain steps is sought to be stayed for seven days.  That is a sensible course. The execution of such an order can cause embarrassment, is a waste of public funds, and so on.  So, that is to be avoided. 

10. The important thing is for the father to cause the child to be returned immediately to the mother. Although that express order is not sought here, I will make it because that is the order that is needed. 

    ORDERS DELIVERED

11. In relation to the balance of the Application in a Case filed 27 October 2008 and the Application that the father be dealt with for breach of an order affecting a child filed the same date, I adjourn the proceedings to the Judicial duty list at 9.30 am on 15 December 2008.

12. I reserve the costs of the wife of and incidental to the proceedings today. 

13. I should formally note that there was no appearance by the father when judgment was delivered. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Loughnan JR

Associate: 

Date:  2 December 2008