Herewini and Harmer

[2007] FamCA 370

FAMILY COURT OF AUSTRALIA

HEREWINI & HARMER [2007] FamCA 370

FAMILY LAW - CHILDREN - Recovery order

Family Law Act 1975 (Cth)

APPLICANT: MR HEREWINI

RESPONDENT: MS HARMER

FILE NUMBER: MLC 2702 of 2007

DATE DELIVERED: 19 APRIL 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 APRIL 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LYNCH

SOLICITOR FOR THE APPLICANT: MR LYNCH

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

1. THAT the children D born in July 1999, S born in August 2001 reside with the father who is to have sole care and responsibility for their development and upbringing.

2. THAT until further order the youngest child born in September 2004 live with the father.

3. THAT pursuant to Section 67U of the Family Law Act 1975 (as amended) a Recovery Order issue authorising and directing the Australian Federal Police and its agents and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to offer such assistance as required and if necessary by force as follows:

   (a)to find and recover the youngest child born in September 2004;

   (b)to deliver the youngest child to her father at the home address, A or otherwise to contact and make arrangements to deliver the child to her father on his mobile telephone number … ;

   (a)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 youngest child may be found.

4. THAT father be responsible for effecting forthwith service of a sealed copy of this Order upon the proper officer of the Australian Federal Police who is requested to give operation thereto and are hereby so empowered.

5. THAT the father, as soon as practicable, serve a sealed copy upon the mother of the following documents:

   (a)his Form 1 application filed 9 March 2007;

   (b)his Form 2 application filed 9 March 2007

   (c)his affidavit filed 9 March 2007;

   (d)a sealed copy of this Order.

6. THAT the further hearing of the Form 1 and Form 2 applications filed 9 March 2007 be adjourned to the Judicial Duty List at 10.00 a.m. on 17 May 2007.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

1. Unless otherwise specified in the order:

   (a)the order remains in force for twelve (12) months;

   (b)each term of the order continues to have effect until the end of the period it remains in force, regardless of whether anything has previously been done in accordance with the order.

2. Section 122AA of the Family Law Act 1975 authorises the use of reasonable force in making an arrest or to prevent the escape of a person after arrest.

3. Section 122A sets out the powers of entry and search for the purposes of arresting a person.

4. Rule 21.14 Family Law rules provides that a copy of the recovery order shall be served on the person from whom the child is recovered at the time the child is recovered.

5. It is at the discretion of the person authorised or directed to find and recover a child under this order to recover the child from the place where the child is found if the person to whom the child is to be returned or delivered it not present and able to receive the child.

6. If a person who is authorised or directed to find and recover a child is given information provided to the Registrar of a court under a location order, that information shall not be disclosed to any person, except as authorised by section 67P of the Family Law Act 1975.

7. Sections 65S to 65W of the Family Law Act 1975 set out what happens to a person who is arrested without warrant.

8. Section 67X provides that it is an offence to prevent or hinder the taking of action by a person authorised by a recovery order.  A person found guilty of such an offence can be fined, ordered to enter a recognizance or imprisoned.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2702 of 2007

MR HEREWINI

Applicant

And

MS HARMER

Respondent

REASONS FOR JUDGMENT

1. The matter of Herewini v Harmer has been transferred from the Registrars' Duty List.  The matter is to be heard ex parte, the mother does not appear at court.

2. Mr Lynch, solicitor, appears for the father and I have before me a Form 1 and Form 2 application filed 9 March 2007 seeking a recovery order in respect of one of the three children of the relationship. 

3. The history of this matter shows that a location and information order was made by the court on 20 March 2007, but that has not provided any information on the current whereabouts of the wife or the child.

4. This matter has a history before the court and I have generally sighted the earlier the court documents, including final orders that were made on 8 October 2003 before the birth of the youngest child. 

5. The usual residence of that younger child, post-birth, was with the father and the parents lived on and off together between February 2004 and June 2006 at which time the mother left the home and thereafter had no contact with any of the children up until mid-February of this year. 

6. There are paragraphs in the affidavit from paragraph 13 onwards that touch upon the relevant factual circumstances which I accept, including the fact that the father has been sole caregiver for the children for the majority of their lives and remains the sole caregiver for the two elder children.

7. I am asked to make final orders in respect of the two elder children consistent with earlier court orders.  Given that there was a resumption of cohabitation at some period in the past few years that is a prudent order to make.  I will otherwise make an interim resident order in favour of the father for the youngest child.

8. In the circumstances of this case I do propose to make a recovery order, though the information that can be provided by or on behalf of the father is somewhat limited and it will be a difficult assignment for the Australian Federal Police to locate the whereabouts of the mother and youngest child.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 1 May 2007