Duckett & Robinson

[2015] FCCA 997

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUCKETT & ROBINSON [2015] FCCA 997

Catchwords:
FAMILY LAW – Children – parenting orders – recovery order – warrant for arrest – where mother left the jurisdiction taking the child with her.

FAMILY LAW – Children – parentage – declaration as to parentage – alteration of record of child’s birth to include Applicant as father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65Q, 67Q, 69VA

Births, Deaths and Marriages Registration Act 1995 (NSW), s.19

Applicant: MR DUCKETT

Respondent: MS ROBINSON

File Number: SYC 5776 of 2013

Judgment of: Judge Scarlett

Hearing dates: 8-9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

Counsel for the Applicant: Ms Murphy

Solicitors for the Applicant: Derham Houston Lawyers

Counsel for the Respondent: Ms Gibbons (leave to withdraw)

Solicitors for the Respondent: Maveston Legal

Counsel for the Independent Children's Lawyer: Ms Falloon

Independent Children's Lawyer: Peter Baker Solicitor

ORDERS

1. All earlier Parenting Orders are discharged.

2. The child X born (omitted) 2011 is to live with the Applicant Father who is to have sole parental responsibility for the child.

3. As provided by section 67Q of the Family Law Act 1975 a Recovery Order is to issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia requiring them to find and recover the child X born (omitted) 2011 and to deliver the said child to the Applicant and for that purpose 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 the said child may be found.

4. As provided by section 65Q of the Family Law Act 1975 a Warrant is to issue authorising and directing the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth Australia to arrest MS ROBINSON born (omitted) 1970 and bring her before the Court.

5. In accordance with section 69VA of the Family Law Act 1975 it is declared that the Applicant MR DUCKETT born (omitted) 1970 is the Father of the child X born (omitted) 2011.

6. The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the Applicant MR DUCKETT born (omitted) 1970 in the Register as the Father of the child X born (omitted) 2011.

7. The Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5776 of 2013

MR DUCKETT

Applicant

And

MS ROBINSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a little boy called X, who was born on (omitted) 2011. The child has been living with his mother, the Respondent, but the Father seeks that he should live with him. The Father has also sought an order that the Mother should consent to his name being added to the particulars of the child’s birth at the Registry of Births, Deaths and Marriages.  

Background

1. The Application was listed for final hearing at this Court for three days, from 8^th to 10^th April 2015. When the matter was called on the morning of 8 April, Counsel for all three parties appeared, but the Mother herself had not attended. Ms Gibbons of Counsel, who appeared for the Mother, told the Court that she did not know where her client was. She said that she had had a conference with her the afternoon before and had told her to be at the Court by 9:00 am.

2. Attempts were made telephone the Mother without success. 

Evidence

1. Eventually, as the Mother did not appear, the Father gave evidence. He said that he had had a conversation with the mother by text message on Monday 6^th April. The last time he saw the child was the previous Friday. He said that he was due to see the child on the Sunday but did not, as the Mother told him the child had been unwell.

2. The Father said that he had a conversation with the Mother about how the child would be cared for whilst the parents were at Court. He said that the Mother asked him to arrange with her family members to look after him, as she was not communicating with her family.

3. The Father rang the Mother’s elder sister and spoke to her about caring for the child, and she agreed. He said that he had telephoned the sister a short while before and was told that the child was not there because the Mother had not dropped him off at her home. He said that the sister had told him that the Mother had told her that the child had vomited in the car and she was taking him straight to a medical centre. The Father said that he did not know where the child was at all.

Orders

1. Accordingly, I made interim orders that:

   a)All earlier parenting orders were discharged;

   b)The child was to live with the Father, who was to have sole parental responsibility; and

   c)A Recovery Order was to issue under the provisions of s.67Q of the Family Law Act 1975 (Cth).

2. I then adjourned the matter for mention on Friday 10^th April.

3. However, information was received late that afternoon from the Australian Federal Police that the Mother had left Australia with the child on a flight to (country omitted) at 1:43 pm. The matter was then restored to the list at short notice on Thursday 9^th April.

4. When the matter came back to Court the following morning, I heard submissions from Ms Murphy of Counsel, who appeared for the Father. The Court was told that the Father had no idea that the Mother had obtained a passport for the child or that she had any plans to take the child out of the jurisdiction. Ms Murphy submitted that the Court should issue a warrant for the Mother’s arrest to take effect upon her return to Australia. She also sought an order that the Father’s name should be added to the child’s birth certificate.

Conclusions

1. A court when making a parenting order must regard the best interests of the child as the paramount consideration, as provided by s. 60CA of the Family Law Act 1975. Section 60CC sets out the considerations to be made by the Court when determining what is in a child’s best interests.

2. I have considered those matters.

3. It appears that the Mother’s flight from Australia with the child on the first day of the final parenting hearing was deliberately pre-planned, as she proceeded to meet with her counsel the day before the hearing started and negotiate with the Father as if nothing was amiss. The child’s name was not on the Family Law Watch List maintained by the Australian Federal Police as no order to that effect was ever sought. In fairness to the Father, he appeared to have no inkling that the Mother was planning to remove the child from Australia.

4. In my view, the Mother’s actions in removing the child from Australia are highly irresponsible and not in the child’s best interests. Removing the child from Australia will have a detrimental effect on the child’s ability to have a meaningful relationship, or any relationship, with his father. Uprooting this child from his familiar surroundings and taking him to (country omitted), where he presumably does not know anyone other than his mother, may potentially cause him psychological harm. It is significant that the Mother’s immediate family, from whom she appears to be estranged, live permanently in Australia.

5. I propose to order that the child should live with the Father. I am satisfied that it is not in his best interests for his parents to have equal shared parental responsibility for him.

6. I propose to issue a warrant for the Mother’s arrest upon her eventual return to Australia.

7. I am satisfied from the Father’s evidence that he is the Father of the child X and I will make a declaration under s.69VA of the Family Law Act 1975. In the circumstances, it is appropriate that an order should be made under the provisions of section 19 of the Births, Deaths and Marriages Registration Act 1995 (NSW), directing the Registrar of Births, Deaths and Marriages to register the father’s name on the particulars of the child’s birth.

8. The Independent Children’s Lawyer will be discharged. No order for costs has been sought.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  20 April 2015