Houston and Houston (No. 2)

[2008] FamCA 1076

FAMILY COURT OF AUSTRALIA

HOUSTON & HOUSTON (NO. 2) [2008] FamCA 1076

FAMILY LAW – CHILDREN—Location order—Ex-parte where mother’s location is unknown—Location to be disclosed to process server—Warrant for arrest on failure to appear—ICL requested

APPLICANT: Mr Houston

RESPONDENT: Ms Houston

FILE NUMBER: BRC 10248 of 2007

DATE DELIVERED: 8 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 8 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appeared in person by telephone

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the Respondent Mother

Orders

IT IS ORDERED THAT:

1. The Father be granted leave to proceed ex-parte.

2. IT IS DECLARED the Court is satisfied that the records of the Western Australia Department of Education and Training, are likely to contain information in relation to the children, N HOUSTON (possibly also known by the surname M), born …May 1999 and twins R HOUSTON (possibly also known by the surname M) and K HOUSTON (possibly also known by the surname M) born … 5 August 2000 and the mother, MS HOUSTON (possibly also known by the surname M) born … August 1973, the person who has possession of the children.

3. The Director of the Western Australia Department of Education and Training must give to the Registry Manager of this Registry of the Court such information as is contained in or comes into the records of the Western Australia Department of Education and Training about the location of the children, N HOUSTON (possibly also known by the surname M), born …May 1999 and twins R HOUSTON (possibly also known by the surname M) and K HOUSTON (possibly also known by the surname M) born … 5 August 2000 and the mother, MS HOUSTON (possibly also known by the surname M) born … August 1973, the person who has possession of the children.

4. IT IS DECLARED the Court is satisfied that the records of Centrelink are likely to contain information in relation to the children, N HOUSTON (possibly also known by the surname M), born …May 1999 and twins R HOUSTON (possibly also known by the surname M) and K HOUSTON (possibly also known by the surname M) born … 5 August 2000 and the mother, MS HOUSTON (possibly also known by the surname M) born … August 1973, the person who has possession of the children.

5. The Business Manager of Centrelink must give to the Registry Manager of this Registry of the Court such information as is contained in or comes into the records of Centrelink about the location of the children, N HOUSTON (possibly also known by the surname M), born …May 1999 and twins R HOUSTON (possibly also known by the surname M) and K HOUSTON (possibly also known by the surname M) born … 5 August 2000 and the mother, MS HOUSTON (possibly also known by the surname M) born … August 1973, the person who has possession of the children.

6. The records to which these Orders apply should be searched at least once each month and the Registry Manager is to be notified of the result of each search.

7. If information is provided to the Registry Manager pursuant to these Orders, the officer required to give information to the Registry Manager must at the same time provide any information about actual or threatened violence to any child to whom the Orders relate, a parent of such child or another person with whom such child lives, that is in the records.

8. The above Orders will remain in force for a period of twelve (12) months.

9. The Registry Manager may provide any information received pursuant to this Order to a process server in Western Australia to serve documents on the Mother in these proceedings at the expense of the Brisbane Registry Family Court of Australia.

(10)This Commonwealth Information Order requires the records of Centrelink to be searched for the information sought by the Order notwithstanding the fact that it may be less than three (3) months since the last search was conducted.

(11)  The Father not be informed of the address of the Mother.

IT IS FURTHER ORDERED THAT:

(12)The matter be adjourned to 10.00 am on 21 January 2009 before the Honourable Justice Barry at the Brisbane Registry of the Family Court.

(13)The Mother to appear personally with the said three children at the Brisbane Registry of the Family Court at 10.00 am on 21 January 2009.

(14)If the Mother fails to appear on 21 January 2009 a warrant for her arrest is to issue forthwith.

(15)Within twenty-eight (28) days of today’s date the Mother is to advise the Registrar of the Brisbane Registry of the Family Court of Australia and the Registrar of the Family Court of Western Australia in writing of her address and telephone number at which she may be contacted.  The Mother is to notify in writing to each of the Registrars of any change to her address or telephone number within twenty-four (24) hours of any details changing.

(16)The Mother is to take the three children, the subject of these proceedings, to the Family Court of Western Australia at a time to be nominated by the Registrar of the Family Court of Western Australia to allow the children to be interviewed for the purpose of reportable counselling pursuant to Section 65L.

(17)Copies of the relevant documents on the file are to be forwarded to the Registrar of the Family Court of Western Australian by a Registrar of the Brisbane Registry of the Family Court of Australia.

(18)The interests in these proceedings of the children, N HOUSTON (possibly also known by the surname M), born …May 1999 and twins R HOUSTON (possibly also known by the surname M) and K HOUSTON (possibly also known by the surname M) born … 5 August 2000, be independently represented by a lawyer and it is requested that Legal Aid Queensland, Legal Aid New South Wales or Legal Aid Western Australia, arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia in Brisbane.

NOTATION:

The Father resides in New South Wales the children are believed to be in Western Australia and the litigation is in Queensland.  It is requested that the Independent Children’s Lawyer be appointed in the jurisdiction deemed most appropriate by the relevant Legal Aid bodies.

IT IS NOTED that publication of this judgment under the pseudonym Houston & Houston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10248 of 2007

MR HOUSTON

Applicant

And

MS HOUSTON

Respondent

REASONS FOR JUDGMENT

1. This file really is in two parts; the first file related to a hearing before Jordan J in February 2007.  For reasons he gave at the time, his Honour ordered that the father was to have supervised time only.

2. The subject children are the eldest daughter N, born in May 1999 and twins, R and K, born in August 2000.  His Honour ordered that the children live with the mother, she have sole parental responsibility and the children were to spend time with the father up to four hours at a contact centre each alternate weekend. 

3. At some point in time, the mother left this country and travelled overseas with the children.  There have since been orders issued by way of a PACE alert preventing the children from being taken out the country.  Suffice to say that, after a period of time and a series of events, the mother came back to Australia with the children.

4. At the time of her return she was still in a relationship with a Mr M.  Mr M and his family resided in the Northern New South Wales area.

5. The Court made a location order directed to Centrelink.  It is understood an address was provided in northern New South Wales.  I have reason to believe it was the M residence.  A process server went there to effect service but was told that the mother did not live there and the children were not living there.

6. It was, therefore, somewhat surprising that within days a firm of solicitors entered an appearance on behalf of the mother.  A notice of address for service was filed on 29 August 2008 by Slater & Gordon Lawyers.  The lawyer was a well known practitioner in that area. 

7. On 9 September that firm filed a notice of ceasing to act.  It is clear the mother had been served with the contravention style application, had engaged solicitors, they filed and then they ceased to act.

8. I am going to have to disclose the state in which the mother is believed to be currently residing and that is Western Australia.  The Court has reason to believe that the mother is residing there but, for my own part, I have reservations about whether a letter sent to her at a particular address in Western Australia would have reached her because of other information that has subsequently been received.  The best I can do is to order a further location order directed to Centrelink to see if my suspicions be correct.

9. In the meantime, I propose to adjourn this matter to 21 January 2009. 

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

   ORDER DELIVERED

10. The problems are that the father resides in New South Wales.  I am prepared to make the direction to the office of Legal Aid Queensland, to the New South Wales office of Legal Aid or to the West Australian office of Legal Aid but I would ask somebody from the Queensland Office of Legal Aid to appear on 21 January to explain the most appropriate body to make the appointment of an Independent Children’s Lawyer.

11. The father is not legally represented.  The mother has been blatant in not complying with Court orders to date.  It is a long time since the father has managed to see his children.  As I have said, there is evidence that the mother has briefly had legal representation but the inference I draw from the fact that she has left from the east coast of Australia over to the west coast is that she well believes she is less likely to be detected in the West Australian area generally.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  8 December 2008