Graham and Wilson

[2012] FamCA 642

FAMILY COURT OF AUSTRALIA

GRAHAM & WILSON [2012] FamCA 642

FAMILY LAW – CHILDREN - Recovery Order - Where the Mother makes an application for an urgent recovery Order on an ex parte basis - Where the Mother has not established that the Respondent Father is a flight risk - Where the Mother failed to obtain legal advice until seven days after the child was removed from her care by the Respondent Father – Whether principles of natural justice and procedural fairness in respect of the Respondent Father’s right to be heard give way to best interests considerations in the circumstances

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Graham

RESPONDENT: Mr Wilson

FILE NUMBER: TVC 826 of 2012

DATE DELIVERED: 7 August 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Kent J

HEARING DATE: 7 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Queensland Indigenous Family Violence Legal Service

Orders

1. Pursuant to s 33B of the Family Law Act 1975 (Cth), the matter be transferred to the Federal Magistrates Court.

2. On the proviso that the Mother effects service of the application and supporting material upon the Father on or before 4.00 pm on Thursday 9 August 2012, the Application be listed for further hearing in the Federal Magistrates Court before Federal Magistrate Coker at 9.30 am on Thursday, 16 August 2012.

3. For the purposes of Order 2 and for service, service of the material upon the Father’s mother, Ms U, shall be deemed to be effective service upon the Respondent Father, Mr Wilson.

4. Service pursuant to Orders 2 and 3 may be effected by electronic means or by facsimile.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Wilson 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 TOWNSVILLE

FILE NUMBER: TVC 826 of 2012

Ms Graham

Applicant

And

Mr Wilson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought on an ex parte basis for a recovery Order within the meaning of s 67Q of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 67T of the Act identifies the parties who may apply for such an Order, and the Applicant on this application, who is the mother of X, born in June 2012 (“the child”), is in the category of persons who may make such an application.

2. Section 67U of the Act sets out the Court’s power to make a recovery Order, which is expressed to be subject to s 67V. In turn, s 67V prescribes that in deciding whether to make a recovery Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

3. On the evidence advanced by the Applicant, the parties commenced cohabitation in November 2011, at that time in Town B in New South Wales. They came to Town W in Queensland on 17 March 2012, and as noted, the child was born in June 2012, and is therefore now just two months of age.

4. The parties finally separated, on the Applicant’s material, on either 21 July 2012 or 24 July 2012. It seems, on the Applicant’s evidence, that the Father, Mr Wilson, removed the child from the parties’ then-home in W on 24 July 2012.

5. At paragraph 5 of her affidavit in support of the application, the Mother deposes to the feature that, notwithstanding the father’s removal of the child on 24 July 2012, it was not until 31 July 2012 that she sought to obtain any legal advice and this ex parte application was only filed today.

6. The Mother deposes in paragraph 7 of her affidavit that, following the child’s birth and her leaving hospital on 11 June 2012, the child was breastfed for the first week of his life. By necessary inference, this breastfeeding apparently ceased after that first week, so in circumstances where the subject child is only two months of age, it is not suggested by the Applicant that he remained dependent upon breastfeeding.

7. The Mother sets out in her affidavit in paragraphs 13 to 25 allegations of domestic violence or at least a propensity, she says, of the Father for violence and she repeats similar applications in a Notice of Child Abuse, Family Violence or Risk of Family Violence filed today.

8. The Mother deals with the circumstances of the child’s removal from her care in paragraphs 26 to 31 of her affidavit. Of importance is that at paragraph 39(c), the Mother sets out in her affidavit the likelihood that the Father, Mr Wilson, and the child are and have been staying with the Father’s mother and the child’s paternal grandmother, Ms Q. That seems to have been the position and has been known to the Mother since about 31 July, when she obtained information from the police to that effect. Indeed, the Mother deposes at paragraph 40 of her affidavit that she has a telephone number for Ms U, and at paragraph 43, she refers to a telephone conversation she had with Ms U on 1 August 2012.

9. Nothing in the Applicant’s material is directed to the child being at some risk in terms of Ms U to the extent that Ms U is providing support to the Father in respect of his care of the child.

10. It is fundamental to our system of justice that a person affected by an Order or potentially affected by an Order has a right to be heard. Principles of natural justice and procedural fairness dictate that respondents or persons affected by Orders of a Court have a fair opportunity to be heard before Orders are made.

11. Obviously enough, those principles give way when the best interests of a child are concerned and that is part of the rationale behind the relevant sections to which I have referred in Part VII of the Act. Section 67V of the Act requires that the best interests of the child are the paramount consideration in the Court determining whether or not to make a recovery Order. Axiomatically, where the Court has the untested and uncorroborated evidence of only one party, there are significant limitations upon the capacity of the Court to reach conclusions about best interests.

12. The principles of natural justice and procedural fairness in the context here are reflected in r 5.12 of the Family Law Rules 2004 (Cth). Rule 5.12 specifically deals with applications made without notice. On such an application, an Applicant must satisfy the Court about why shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate, and secondly, why an Order should be made without notice to the other party. Rule 5.12(b) of that rule sets out what an Applicant must demonstrate by affidavit or orally with the Court’s permission. Relevantly, it includes in r 5.12(b)(v) whether the Respondent or the Respondent’s lawyer has been told of the intention to make the application, and secondly, in r 5.12(b)(vi), whether there is likely to be any hardship, danger or prejudice to the Respondent, the child or a third party if the Order is made.

13. Mr Mackay submits on the evidence of the Applicant that the Father is a flight risk in circumstances where he removed the child from Queensland to New South Wales. However, that must be understood in its proper context. What the Father did was to go to his Mother’s residence, it would seem on the evidence, in Town G, New South Wales. There would not appear to be, even on the Applicant’ s case, evidence that the Father has gone into hiding or will not co-operate for a proper consideration of the matter by the Court in circumstances where it was his own relatives that readily co-operated with police enquiries as to his whereabouts and where, as already noted, the Mother has been in telephone contact with the Father’s mother, Ms U, as at 1 August 2012.

14. In all the circumstances, and bearing in mind that a recovery Order would entail police authorities removing a two month old baby from Town G in New South Wales and returning him to Town W in Queensland when such police authorities may not be properly resourced to address the needs of a two month old baby, I am not satisfied that an Order should be made without notice to the Father in these circumstances.

15. I note that the Mother delayed even seeking legal advice subsequent to the child’s removal and implicit in that delay is that she did not see the child as being sufficiently endangered, to use that expression, to act with immediacy. I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 August 2012.

Associate: 

Date:  7 August 2012