Hurst and Taylor

[2012] FamCA 315

FAMILY COURT OF AUSTRALIA

HURST & TAYLOR [2012] FamCA 315

FAMILY LAW – CHILDREN – Child to be delivered to the Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Hurst

RESPONDENT: Mr Taylor

FILE NUMBER: MLC 3693 of 2012

DATE DELIVERED: 27 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Noureddine

SOLICITOR FOR THE APPLICANT: Hartleys Lawyers

Orders

1. That the applicant have leave to bring this application this day without notice to the respondent.

2. That the application filed 27 April 2012 is adjourned to 9.15am on Monday 30 April 2012 before the Honourable Justice Cronin.

3. That the respondent father or his agent bring the child B born … March 2010 to the foyer of the Family Court of Australia at Melbourne at 9.00am on 30 April 2012 and hand the child to the mother who is hereby restrained from removing the child from the Court until further order.

4. That service of this order occur as a matter of urgency by such means as are practicable including by facsimile transmission, email or personally together with notification to the father by telephone forthwith.

AND THE COURT NOTES

A.That should the father fail to comply with these orders a warrant may be issued for his arrest and a recovery order issued for the collection of the child without further notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Taylor 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 3693 of 2012

Ms Hurst

Applicant

And

Mr Taylor

Respondent

REASONS FOR JUDGMENT

1. This is an application brought on as a matter of urgency on 27 April which is a Friday afternoon.  The application is by the mother of a child, B (“the child”), who was born in March 2010 and who is therefore two years of age.

2. Although the evidence is somewhat confusing, it appears that the child normally lives with the mother, and exactly where the father lives is somewhat unclear.  The mother asserts that the father works all over Australia as a labourer.  It would appear that he has been in and out of the relationship, and just what role he has played as a parent to the child is unclear.

3. It seems that on 25 April 2012 the mother noticed a text message was sent from her mobile telephone to the father’s brother Mr L, who resides in Brisbane, asking whether Mr L could live with – asking whether the child could live with Mr L and his wife in Brisbane whilst the father worked.  On the morning of 26 April the mother noticed that the child was not at home when she woke.  It transpires that someone – and she presumes it was a man known as Mr P – has taken the child to Brisbane.  Mr P is apparently the father’s stepbrother, but he, for reasons which are not clear from the affidavit, was living with the mother.

4. In the morning of 26 April, the mother received a text message from the father indicating that the child was with him and that he was going to look after her thereafter.  The father asserted that he thought that the mother was not capable of giving the care the child needed and he had then contacted a lawyer and said that he was going to make an application to the Family Court that day.  He said that the mother would be able to see the child once the orders were made by the Court.

5. To the extent that that story encompasses the whole of what occurred, it is a totally unsatisfactory position for any parent to take the law into their own hands and simply move a child into that environment where the child is unfamiliar, and giving responsibility for other persons to care for the child without the matter being properly dealt with by either professional assistance or through the Court.

6. At this stage, I am concerned that the welfare of the child is not being properly attended to.  I am equally concerned about the father’s assertion of the mother’s capacity, bearing in mind that the affidavit makes reference to her past use of what she euphemistically calls recreational drugs, to the extent there is such a thing.  It is clear that it is not appropriate for parents to be engaged in that sort of activity.

7. The appropriate course of action at this stage, notwithstanding the application before me is for a recovery order, is to make an order that the child be returned to this Court on Monday morning to the applicant and then in a civilised way the father can have an opportunity to be heard and put his allegations.  To the extent that the mother has not told the truth in her affidavit, no doubt the father will tell the Court and the mother will face the consequences.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 April 2012.

Associate: 

Date:  7 May 2012