Hale and Wanden

[2008] FamCA 22

FAMILY COURT OF AUSTRALIA

HALE & WANDEN [2008] FamCA 22

FAMILY LAW – CHILDREN – Order made for mother to deliver 5 year old child to court in circumstances whereby she had wrongfully removed the child.  Inappropriate to make a Recovery Order.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mr Hale

RESPONDENT: Ms Wanden

FILE NUMBER: MLC 13882 of 2007

DATE DELIVERED: 2 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 2 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That until further order, … (the child), born on … June 2002 live with the father AND THAT further consideration of the mother’s time to be spent with the said child be reserved.

2. That until further order, the father be responsible for the day to day care and general welfare of the said child.

3. That the father do forthwith serve upon the mother a sealed copy of the initiating application and affidavit filed on 31 December 2007 together with a sealed copy of the orders made this day.

4. That the mother do forthwith deliver the said child to the father.

5. That all extant applications be otherwise adjourned for further hearing before the Honourable Justice Guest at 10.00 am on 4 January 2008.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Hale & Wanden.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13882  of 2007

Mr Hale

Applicant

And

Ms Wanden

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and comprises an Initiating Application brought by the father filed on 31 December 2007, together with an affidavit sworn by the father and returnable this day after leave was granted to abridge time.

2. The application concerns a child, who was born in June 2002 of the union of the father and the mother.  I have given consideration to the application and have read the affidavit in support.  With due caution I have required the father to give additional evidence by way of clarification.

3. The father was born at in New Zealand in July 1974.  The mother was born in September 1979, in New Zealand.  They first met in 1997 and commenced cohabitation.  They separated for a short period of time in about 2000.  Their daughter, the child to whom I have earlier referred, was born in M in New Zealand in June 2002, and is five and a half years of age.

4. Following unhappy differences between the parties, they separated some eight weeks following the birth of the child in August 2002, when the mother removed the child from M and went to live in the North Island in New Zealand.  The father brought proceedings in an appropriate court in New Zealand.  In the course of his affidavit in these proceedings, the father has referred to the court hearing in New Zealand, but has been unable to provide copies of any documents relating to those proceedings or any court order asserting, amongst other things, that the mother removed all his documents concerning those proceedings when she recently left him on 28 December 2007.

5. In any event, it appears to me from what the father has said in the course of his evidence, that orders were made in an appropriate court in New Zealand in about October 2002, effectively requiring the mother to return to M.  Thereafter, the father informed me that the mother and the child lived in his home, whilst he resided in the home of his mother.  They effectively shared the care of their daughter. 

6. In about late 2003, the mother moved to Australia resulting from her parents having moved here as well.  She desired to bring the child to Australia.  The father agreed to this, he said, on the basis of a court order being made that there would be no removal of the child by either the mother or himself, other than between Australia and New Zealand.  I am a little unsure as to the efficacy of that order, however the father did say that the child remain with the mother for approximately two months until about early 2004, when it was agreed that they would share her care and that, in effect, the child would be cared for jointly by them both on a shared basis of approximate time spans of two months.

7. The father said that the mother sent the child to him in New Zealand, and there the child remained with him until about May 2005.  He said that the mother did not proceed with the "shared arrangement" I have earlier described, as she was "studying" and had a "full-time job".  Accordingly, as I understand the father's evidence, the child lived with him until May 2005 when he and the child travelled and relocated to R in Victoria at that time.  He says that he did so in order for the child to "know her mum".  He explained that from about May 2005 until 28 December 2007, he and the child lived in the mother's home.  They did not share an intimate relationship, but they otherwise shared the care of their daughter, the mother having partaken other relationships.

8. The father commenced full-time employment in late 2005.  He deposed in his affidavit, and explained in the witness box, that the mother left unilaterally and without notice on 28 December 2007.  All he had was her mobile phone number.  He did not know the whereabouts of the mother or the child. 

9. However, he has been able to speak to her on the telephone and in particular yesterday, he made her aware of the proceedings this day.  He explained to me that the mother said she “would comply” with any order made by the court.  The father was concerned that a Recovery Order not be made as the requirement of the Victoria Police or Australian Federal Police collecting and removing the child from the mother's care may be detrimental to the child’s interests, and “would scare her”.

10. The father said he was confident that if an order was made that the child be returned to his care and he was able to get in contact with the mother, that she would comply with the order.  I accept that evidence.  He explained to me further that he is confident that he would be able to, if armed with an order, persuade the mother to meet him so that he would be able to provide to her a sealed copy of the order and the material on which he has sought to rely in his application before me this day.  I accept that would be appropriate in the circumstances, and I propose to refer the further hearing of these matters until 10 am on 4 January 2008.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  24 January 2008