Frankham and Naparus (No.5)

[2020] FCCA 1892

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANKHAM & NAPARUS (No.5) [2020] FCCA 1892

Catchwords:
FAMILY LAW – Application for Recovery Order where mother indicates in face of the Court that she has no intention of complying with parenting orders providing inter alia that she return child from Western Australia to Victoria.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR FRANKHAM

Respondent: MS NAPARUS

File Number: MLC 1462 of 2016

Judgment of: Judge McGuire

Hearing date: 9 July 2020

Date of Last Submission: 9 July 2020

Delivered at: Launceston

Delivered on: 9 July 2020

REPRESENTATION

Counsel for the Applicant: Mr N Graham

Solicitors for the Applicant: Nick Graham Legal

The Respondent in person

Counsel for the Independent Children’s Lawyer: Mr Dunstan

Solicitors for the Independent Children’s Lawyer: Bowlen Dunstan & Associates

ORDERS

1. In the matter of Naparus & Frankham, there will be an order for a recovery order in respect of the child, X, born in 2015 in favour of the father, Mr Frankham. 

2. That the orders of this Court of 30 April 2018 remain in full force and effect. 

3. That until further order the orders of 30 April 2018 be amended so that the father’s time with X be restricted to taking place in the municipality of City B and that all changeovers at the appointed times for X to spend time with the father occur at McDonald’s at Suburb C.

4. That the recovery order lay in Court for a period of 7 days from the date of these orders conditional upon the mother confirming with the Independent Children’s Lawyer, Mr Dunstan, within that period that she has returned with X to the City C municipality, failing which and upon telephone confirmation by Mr Dunstan to the Chambers of Judge McGuire, then the recovery order will be executed.

IT IS NOTED that publication of this judgment under the pseudonym Frankham & Naparus (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 1462 of 2016

MR FRANKHAM

Applicant

And

MS NAPARUS

Respondent

REASONS FOR JUDGMENT

Delivered Ex-Tempore

1. In the matter of Frankham & Naparus, I have an application by the father seeking an order for a recovery order in respect of the relevant child X born in 2015.

2. The relevant recent history is now well-documented.  The matter was listed and heard for trial before Her Honour Judge Mercuri.  The mother lodged an appeal and was successful in the appeal.  The matter was remitted to me for hearing, I think on the 9^th of June of this year.  During the period of the remitted hearing, the mother removed herself and X to Western Australia I think a day or perhaps a couple of days prior to the state lockdown because of the COVID-19 virus.  There has since been an interim application where the mother was unsuccessful in obtaining orders that in the interim and pending a final trial that X be permitted to live with her in Western Australia. 

3. The successful appeal reactivated interim orders from, I think, April 2018 which provided inter alia for X to spend frequent time with the father and which could not be accommodated from Western Australia.  The mother has appealed my interim order.  The mother made an application for a stay of my interim decision.  Her application was unsuccessful.  She has entered an appeal in respect of my refusal to give her a stay.  And I now have an application by the father seeking a recovery order in respect of X aimed, of course, of having X spend time with the father pursuant to what are the extant interim orders.

4. The father’s application is actively supported by the Independent Children’s Lawyer, Mr Dunstan, and Mr Dunstan is of the view that X’s best interest remains continuing to have contact with her father. 

RECORDED : NOT TRANSCRIBED

1. The mother now represents herself, and today before me she has no intention of complying with my interim orders, which of course, are supported by the independent children’s lawyer.  In the face of the Court, and albeit not being a lawyer she has indicated if I make the order for a recovery order that she will also appeal that.

2. In all of the circumstances, I am inclined to make the order for a recovery order.  The basic principle is that there are extant orders which provide for X to spend time with the father.  That time can take place in the City C municipality.  City C is not subject to any current lockdown provisions in Victoria, and the borders between Western Australia and Victoria are open such that the mother can return the child to Victoria.  There will be an order for a recovery order, but I will make it that the recovery order lay in Court for seven (7) days but to be executed on telephone advice from Mr Dunstan, the Independent Children’s Lawyer, that the mother has not, within that time, confirmed her return of X to Victoria.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 10 July 2020