DICKENS & DICKENS

[2014] FamCA 1226

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS [2014] FamCA 1226

FAMILY LAW – CHILDREN – Recovery order – Where the mother makes an application for an urgent recovery order on an ex parte basis – Where the father alleged that the child said that he had been hit by the mother’s spouse – Where police were involved and did not express concern about the allegation made by the child - Consideration of the best interests of the child – Order made for the return of the child to the mother.

Family Law Act 1975 (Cth) – s 67Q

APPLICANT: Ms Dickens

RESPONDENT: Mr Dickens

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 18 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Adams, solicitor of Hamish Cumming Family Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moylan, solicitor of Moylan Family Lawyers

Orders

1. That the Court notes that the father has not been served with the application and affidavit in support and therefore has not had any opportunity to present any evidence in reply.

2. That the Court notes that the Court considers this matter to be one where some urgent action is required and for this reason these orders are made ex parte.

3. That orders are made in accordance with paragraphs 1, 2, 3 and 5 of the mother’s Application in a Case filed on 18 March 2014 as set out hereunder:-

   1.Pursuant to Section 67Q of the Family Law Act 1975 a recovery Order issue directed to the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police Force and to all Officers of all the Police Forces of all the States and Territories of the Commonwealth of Australia requiring them to:-

   a.To find and recover the child C born … 2003 (presently aged 10 years), hereinafter referred to as “C”;

   b.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 C may be found; and

   c.To deliver C to the Mother at such place as the Mother and the person effecting the recovery agree to be appropriate.

   2.That service of the application in respect to Order 1 above be dispensed with.

   3.        That Order 1 herein be made on an urgent and ex parte basis.

   …

   5.        That Order 4 of the Orders dated 7 June 2013 be suspended.

4. That all parties are given leave to re-list these proceedings on short notice by arrangement with Johnston J’s Associate

5. That these proceedings are otherwise adjourned to 10:00 am on 26 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens 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 SYDNEY

FILE NUMBER: SYC 739 of 2010

Ms Dickens

Applicant

And

Mr Dickens

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Dickens, to whom for convenience, I shall refer as “the mother”, for the Court to make an order on an urgent ex parte basis for the issue of a recovery order directed to the Marshal and to the police, to find and recover the child C who was born on 17 September 2003.

2. The child’s father is Mr Dickens to whom for convenience I shall refer as “the father”.  The application comes becomes the court in circumstances where the child went into the care of his father last Saturday, 15 March 2014, in accordance with current orders.  These orders provide for the child to spend time with his father on a day time basis.

3. The mother has said in her affidavit that both the child and the father had indicated that the child was not going to be returned to his mother at the end of last Saturday as required under the orders.  This was based on a couple of phone calls by the child and also by the attendance of the police.  The child was alleging, apparently, that he had been hit by the mother’s spouse, Mr D.

4. That allegation became the subject of an inquiry by the police in the sense that the father, apparently, attended the police and made his complaint to the police.  The police informed the mother that they had sighted a faint bruise on the child’s back and that the child made an allegation that the mother’s spouse had assaulted him.

5. The police sought some details from the mother.  The mother said that she explained that there had been an argument on the Friday evening, that the boys had not done their chores, that they were sent to bed after their dinner and that C was upset that he did not get to watch the football.  The mother said that she had not seen her spouse hit the child.  The mother said that the police informed her that the bruise looked like something that one would see on an active 10 year old boy and they said that the child’s account was almost like a movie and that it sounded rehearsed.

6. In any event, at least on the mother’s account, the police are not concerned about the matter.  The mother said that her spouse has denied any untoward action towards the child and that his older brother, B, has also said that the mother’s spouse did not hit the child. 

7. What has occurred is that the father has retained the child.  The child has been absent from school.  The orders required for the child to be returned to the mother.  The child has not spent overnight time with the father for something like a six month period.

8. The father lives in secure apartment accommodation.  The only manner in which the mother’s solicitor is able to correspond with the father is by email communication. 

9. The mother and father have a long and protracted history of litigation in this and other courts about parenting matters.  While one always has reservations about making ex parte orders, it is difficult to see that there would be any unacceptable risk to the child in the court making an order that the child return to the care of his mother as required under the existing orders.

10. Because the order will be made ex parte, I propose to bring the matter back to court very soon.  I have some time on next Wednesday 26 March 2014.  In my view, that will be an appropriate time and that will provide opportunity for the father to be able to prepare some material and for the independent child lawyer, in particular, to be able to make some further inquiries.

11. In my view, the orders as sought by the mother in her application should be made in the best interests of C. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 18 March 2014.

Associate:     

Date:              15 April 2015