Grant and Aiden (No 4)

[2016] FamCA 300

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 4) [2016] FamCA 300

FAMILY LAW – Recovery order issued in the absence of mother so that assessment can be made as to what is in a child’s best interests.

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 15 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

THE RESPONDENT: No appearance

Orders

1. That all times be abridged to allow the matter to proceed without further notice to the mother

2. That notwithstanding the existing parenting orders, the child V born … 2006 (female) (“the child”) be delivered to the father for the purposes of her attendance upon the family consultant at the Melbourne Registry of this court on Tuesday 19 April 2016..

3. That until further order the mother spend no time with and have no communication whatsoever with the child.

4. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the said child V born … 2006 (female) and deliver the said child to the father forthwith, he being the person entitled to have the said child in this case, pursuant to orders made in the Family Court of Australia this day.

5. That a copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

IT IS DIRECTED

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

3. That the preparation of these orders be expedited forthwith.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 4) 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 MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

REASONS FOR JUDGMENT

1. This is the return date of a case that I can only describe as quite disturbing.  This is litigation concerning the child, and over a space of two days some few weeks ago, I dealt with the father’s application for contravention of longstanding orders.

2. On the third day on which I was to deliver judgment, the mother did not attend.  In fairness to her, she produced a medical certificate, which effectively said very little and certainly not anything that I could describe as being sufficient to justify me not delivering judgment.  There was no other reason for the matter to be listed, other than for the determination of the matter.

3. One of the disturbing things about this case is the child, who is in primary school, has been removed from her school without the knowledge of the school.  In other words, when school resumed, the child did not appear, and I have been told this morning that police, at the behest of the school, have been making inquiries as to her welfare, because they have been told nothing.

4. The mother has moved to live with the maternal grandmother in North Queensland and taken the child with her.  Notwithstanding the absence of the mother on the last occasion, I made two quite specific orders.

5. The first was that the mother attend personally here today.  The second was that the father have an opportunity to make an oral application today for a recovery order, specifically for the purposes of addressing what I have otherwise ordered, which is a meeting with a family consultant and the child next Tuesday.

6. I indicated I was very concerned about the limited powers that the Court had in terms of how to deal with the contravention application.  This is a rather unusual case, in that there has been at least two occasions in previous years where the Court has found the mother has breached the orders, and having regard to that, I was very limited in what I could do in terms of outcome.

7. I indicated I was not satisfied beyond reasonable doubt to order the most serious consequential orders, and having excluded all of the other potential powers, the only order that seemed to me to be possible was that there be make-up time.

8. The dilemma with make-up time is that the provisions in the Act require the Court to be satisfied that it is in the best interests of the child that the make-up time occur.  Hence, I made an order that the child meet with a family consultant, to find out what her resistance is, bearing in mind the information that the mother provided was extremely limited.  Not only was it extremely limited, but, as I observed at the time, it was remarkably similar to what had occurred on the previous contravention applications, where the mother was found to have breached the orders.

9. I have been informed by the administration of the Court that a notice of appeal has been filed.  I have had the opportunity to see an electronic copy of that notice of appeal.  The appeal seems to be in relation to the return of the child to Melbourne and the mother’s appearance here today.  I made few other orders on that date.  So they are the only matters that can really be dealt with under the notice of appeal.

10. There is another order that the mother seeks, and that is that I disqualify myself, but that is a matter where she is making that as a ground of appeal and has not made the oral application before the Court at the moment.  There is a substantive application for disqualification, but I have adjourned that until the determination of the contravention application.  In other words, I am trying to conclude the contravention application itself.

11. I have also been told by the administration that, somehow or other, 10 kilograms of paper was delivered.  All of mail to the Court is apparently weighed.  To add difficulty, the mother made an application, which I do have in front of me, which was filed on 14 April indicating:

    The mother resides in Queensland, and the cost of appearing in person would be of detriment to the child, for whom she is the sole provider.

12. The mother’s proposed means of communication was that she would telephone on a number provided at a time stipulated if the application was granted or, alternatively, appear by video link from the Family Law Court Brisbane registry.  I do not know whether specific arrangements had already been made, but in any event, I rejected the application, on the basis that I made the specific order for the specific purposes that I have outlined.

13. I think the whole purpose of the order that I made was to enable the Court to ascertain what was in the best interests of the child.  It was not intended as any form of punishment of either the mother or, indeed, the child.  In the circumstances, the oral application that I now have from the father is that a recovery order issue for the delivery of the child should be to him, so that he can bring the child to the Family Court for the purposes of an interview with the family consultant.

14. It may be that there is a very limited amount of time, but it is also possible that if the recovery order is executed very late, then it might be possible to have the interview between the child and the family consultant in the Brisbane registry, at which point in time, the father would be there anyway.  The difficulty with all of this is the absence of the mother this morning.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2016.

Associate: 

Date:  4 May 2016