Independent Children’s Lawyer and Layden and Ors

[2015] FamCA 364

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & LAYDEN & ORS [2015] FamCA 364

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Where the father and child are unable to be located – Where there is an existing recovery orders and arrest warrant – Application by the Independent Children’s Lawyer that the arrest warrant for the father be made for an additional 12 months – Application by the Independent Children’s Lawyer for the recovery order for the child to be made for an additional 12 months – Application by the Independent Children’s Lawyer to receive details of and subpoena persons of interest, identified by the Australian Federal Police, to give evidence before the Court as to the whereabouts of the father and the child – Application granted.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT INDEPENDENT

CHILDREN’S LAWYER:

Mr Trent Waller

FIRST RESPONDENT: Mr Layden

SECOND RESPONDENT: Ms Nevils

FIRST INTERVENER: Ms Layden

SECOND INTERVENER: Ms Lyons

FILE NUMBER: BRC 12342 of 2007

DATE DELIVERED: 18 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT

INDEPENDENT CHILDREN’S LAWYER:

M & K Lawyers

FOR THE FIRST RESPONDENT: No appearance

SOLICITOR FOR THE SECOND

RESPONDENT:

Appleton Krebs Lawyers

FOR THE FIRST INTERVENER:

No appearance

FOR THE SECOND INTERVENER:

In person

Orders

IT IS ORDERED THAT:

1. Leave be granted for a Registrar of the Family Court of Australia to provide to the Independent Children’s Lawyer an un-redacted copy of the correspondence from the Australian Federal Police to the Marshal of the Family Court of Australia authored on 15 April 2015 (“the AFP Correspondence”).

2. Leave be granted to the Independent Children’s Lawyer to issue all subpoenas required to enable the individuals identified in the AFP Correspondence to give evidence on the 10 July 2015.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Pursuant to section 67Q of the Family Law Act 1975 (Cth) a Recovery Order issue addressed to the Marshal of the Family Court of Australia, to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

2. Such persons are authorised and directed to find and recover the child, the child

   B (female) born … 2006, and for that purpose, with such assistance as they require, 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 said child may be found.

1. The said child is to be delivered to the care of the Second Intervener Ms Lyons at C Street, D Town in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and Ms Lyons.

2. The warrant for the arrest of MR LAYDEN  (male) born … 1973 issued on 28 July 2014 be discharged.

3. Pursuant to Rule 21.16 of the Family Law Rules 2004, a warrant shall issue to the Marshal and to all officers of the Australian Federal Police and of all State and Territory police forces for the arrest of MR LAYDEN (male) born … 1973.

4. The Marshal, all officers of the Australian Federal Police and of all State and Territory police forces are ordered to arrest MR      LAYDEN  (male) born …1973 and to bring him before this Court, or any other court exercising jurisdiction under the Family Law Act 1975 (Cth) on the first day on which the Court next sits after the person’s arrest, or as soon as practicable after that date.

1. The Warrant remains in force for a period of twelve (12) months.

IT IS FURTHER ORDERED THAT:

1. The costs of this application be reserved.

2. The proceedings be adjourned before the Honourable Justice Kent for further mention, and if necessary, to take the evidence from the persons identified in the AFP Correspondence whom are to be subpoenaed by the Independent Children’s Lawyer at 10.00 am on 10 July 2015 at the Brisbane Registry of the Family Court of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Independent Children's Lawyer & Layden and Ors 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 BRISBANE

FILE NUMBER: BRC 12342 of 2007

M & K Lawyers

Applicant Independent Children’s Lawyer

And

Mr Layden

First Respondent

And

Ms Nevils

Second Respondent

And

Ms Layden

First Intervener

And

Ms Lyons

Second Intervener

EX TEMPORE REASONS FOR JUDGMENT

1. The substantive proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child, B born in 2006, who is now eight years of age.

2. The parties in the substantive proceedings are the child’s mother, Ms Nevils as applicant; her father as respondent; Ms Layden the paternal aunt and Ms Lyons the maternal grandmother as the interveners; and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the child’s interests in the proceedings. 

3. The parenting proceedings have a protracted history before this Court and previously the Federal Magistrates Court, as it then was, dating as far back as 2007. 

1. Relevantly on 28 November 2012, Forrest J made final parenting orders by consent which included orders for the parents to have equal shared parental responsibility, for the child to live with the mother and spend time with the father. 

2. However, proceedings were reinstituted about a year later on 19 November 2013, by way of the mother’s Application in a Case filed in the Federal Circuit Court. 

3. Following an interim hearing on 20 December 2013, interim parenting orders were made by Judge Cassidy in the Federal Circuit Court, which provided, inter alia, for the child to live with Ms Lyons the maternal grandmother, and spend time with the father and Ms Layden the paternal aunt, each alternate week as well as supervised time with the mother for a period of two hours each alternate Saturday.  Judge Cassidy also ordered that the proceedings be transferred to this Court, with a request that the proceedings be included for inclusion in what is known as the Magellan List. 

4. On 6 March 2014, because the father had retained the child in breach of the subject order, a recovery order was issued by Acting Principal Registrar Spink, authorising the Australian Federal Police to remove the child from the care of the father and Ms Layden the paternal aunt, and deliver her to the care of Ms  Lyons the maternal grandmother.  The recovery order was executed that same day, however, the child could not be located.

5. Thus on 4 April 2014, Forrest J made an order suspending the child’s time with the father, as was provided for in order 4 of the interim orders, dated 20  December 2013. 

6. On 12 June 2014, the ICL filed an Application in a Case and supporting affidavit seeking, inter alia, a publication order and that a warrant be issued for the arrest of the father.  That application was heard by Tree J on 16 June 2014 in the father’s absence.  On that occasion, Tree J made various orders, including an order that the father deliver the child to the Brisbane Registry of this Court at 9.00  am on 23 June 2014 and that the ICL’s application for issue of an arrest warrant be adjourned to a date to be fixed not before 23 June 2014.

7. In addition, a publication order was made, along with orders relating to dispensation of service upon the father.  A notation appears on those orders as follows:

   That the Application for the issue of an arrest warrant for the Father be adjourned to a date to be fixed not before 23 June 2014 and in the event the Father fails to appear or deliver the child in accordance with this Order the Court may issue a warrant for his arrest.

8. On 28 July 2014 the application for the issue of an arrest warrant was heard by me with the order for a warrant for the arrest of the father then being made.  The father appeared by telephone on that hearing but when asked whether he intended to appear in the Brisbane Registry and deliver the child to the Registry he repeatedly asserted to the effect that he would not do so. 

9. The ICL filed an Application in a Case on 4 May 2015 seeking orders which will now be explained.  Firstly, correspondence from the Australian Federal Police was sent to the Marshal of the Family Court of Australia.  This correspondence outlines that Australian Federal Police members have made comprehensive inquiries in an attempt to locate the child.  These include regularly communicating with the father by telephone and email but he is reported to have been uncooperative and has claimed he would not hand the child over to the Australian Federal Police or the maternal grandmother. 

10. Indeed, the father has made demands upon the Australian Federal Police that they should stop harassing his family, as he describes it, and he asserts that the Australian Federal Police have no jurisdiction to execute the recovery order.  The father asserts that he is a Brigadier General of the United Nations and is not amenable to the jurisdiction of this Court or of the attempts by the Australian Federal Police to act in accordance with the orders made by this Court. 

11. Most relevantly, the Australian Federal Police correspondence indicates that certain persons associated with the father and the child have been extensively canvassed for information regarding the whereabouts of the father and the child.  Various locations have also been canvassed in Queensland and New South Wales.  Pursuant to the publication order I have earlier referred to, information concerning the child has been published in the Courier Mail; the Northern Star in New South Wales; on the New South Wales Police Force Facebook page; and the Queensland Police Service website. 

12. The following inquiries have also been made with state and federal government agencies and financial institutions:  first, inquiries with Queensland and New South Wales State Education Departments; secondly, inquiries with the Department of Human Services; thirdly, analysis of the father’s banking records, which indicate consistent transaction patterns involving Centrelink payments being made into his bank account; and finally, liaising with other police jurisdictions, including Queensland and New South Wales.  As earlier noted, the father asserts a lack of recognition by him of Australian law as his reason for ongoing non-compliance with orders of this Court.

13. It would seem that the father, and potentially others associated with him, are actively frustrating police efforts to locate the child.  The correspondence from the Australian Federal Police, which is attached to Mr Waller’s affidavit, refers to a number of people whom have been identified as persons of interest who may be able to assist the Court in locating the child.  The Australian Federal Police correspondence refers to them having exhausted their efforts, but refers to the feature that if those persons potentially are brought to the Court, or are required to give evidence before the Court, that may advance matters.

14. On that basis, the ICL seeks that leave be granted for a Registrar of the Court to provide to the ICL an unredacted copy of the correspondence from the Australian Federal Police to the Marshal of the Family Court of Australia, authored on 15 April 2015, so that the persons or parties who may have information can be identified by the ICL.  The ICL further seeks leave to issue subpoenas to those individuals so that they might be required to give evidence before the Court.

15. In the orders sought by the ICL there is also sought a reissue of the recovery order earlier made on 6 March 2014 as well as, effectively, the renewal of the warrant for the arrest of the father. Rule 21.16 of the Family Law Rules 2004 (“the Rules”) contains the provision for an application for a warrant to be issued for the arrest of a respondent with respect to enforcement of parenting orders. Relevantly for present purposes, pursuant to r 21.16(1)(b), a party may apply, without notice, for a warrant to be issued for the arrest of a respondent if the respondent does not attend at Court on the date fixed for attendance.

16. As earlier noted, on 16 June 2014, Tree J ordered that the father deliver the child to the Brisbane Registry of this Court at 9.00 am on 23 June 2014 and, plainly enough, the father did not comply with that order. Rule 21.17 permits a warrant to be executed by a member of the Australian Federal Police, a member of the police service of a State or Territory, the Marshal of the Court, or any other person appointed by the Court to enforce the warrant. Rule 21.19 of the Rules sets out the procedure after a person’s arrest. It provides that a Court issuing a warrant for a person’s arrest may order that the person arrested:

    (a)be held in custody until the hearing of the case; or

    (b)be released from custody on compliance with a condition, including a condition that the person enter into a bond.

17. Rule 21.19(2) of the Rules obliges a person who arrests another person under a warrant to do certain things, and those things include arranging for the person to be brought to the Court, to take all reasonable steps to have that person brought to the Court and be advised about the arrest in the Court and the Court processes. I also note that under r 21.20 of the Rules a person arrested may apply for a warrant to be set aside and may apply to be released from custody. The reasons which existed as at 28 July 2014 for the issue of a warrant for the arrest of the father continue to pertain presently.

18. Indeed, it would seem on the brief reference I have made to the material provided by the Australian Federal Police, there are further particulars of the father’s knowledge of the relevant orders and further particulars of his clear endeavour not to comply with orders of the Court. 

19. Rule 21.18 provides that a warrant ceases to be enforced 12 months after the date when it is issued.  In the circumstances, I am satisfied that it is appropriate to effectively reissue the recovery order that was previously made on 6 March 2014 and likewise to issue a further warrant for the arrest of the father.

20. I am satisfied that it is now necessary for the Court to actively take further steps to have any interested persons brought to the Court to give evidence for the purpose of attempting to identify the whereabouts of the father and, more particularly, the child and for these reasons I will make the orders sought.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 May 2015.

Associate: 

Date:  19 May 2015