Jeffree and Wallace

[2012] FamCA 704

FAMILY COURT OF AUSTRALIA

JEFFREE & WALLACE [2012] FamCA 704

FAMILY LAW – CHILDREN –Ex parte hearing - Where the Applicant Father is applying on an ex parte basis for a Commonwealth Information Order to locate the Mother - Where the Father has received information that another child in the Mother's care may be a risk to the subject child who is also in the Mother's care - Where the Father is requesting an Independent Children’s Lawyer - Where the Father is requesting that the child be put on the All Airports Watch List

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Jeffree

RESPONDENT: Ms Wallace

FILE NUMBER: TVC 859 of 2012

DATE DELIVERED: 21 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr de Waard

SOLICITOR FOR THE APPLICANT: Kelly Legal

Orders

1. The Initiating Application filed by the Applicant on 14 August 2012 be adjourned to a date to be fixed following the notification contemplated in paragraph 2 of these Orders.

2. The Applicant notify the Court when service has been effected upon the Respondent Mother.

3. The matter be permitted to be heard on an ex parte basis.

4. Pursuant to s 67N(2) of the Family Law Act 1975 (Cth), the business manager of Centrelink provide to a Registrar of the Family Court of Australia at Brisbane information about the location of the child, J, born … March 2002 (“the child”), or the Mother, Ms Wallace, born … 1975, that is contained or comes into the records of Centrelink.

5. Pursuant to s 67P(1)(d) of the Family Law Act 1975 (Cth), leave be granted to disclose the information provided to the Registrar of the Family Court of Australia at Brisbane to the solicitors for the Father, Kelly Legal, and to a process server engaged by them to effect service of the documents on the Mother.

6. Pursuant to Section 62G of the Family Law Act 1975 (Cth), a report be prepared for the Court by a Family Consultant, Child Dispute Services, nominated by the Senior Family Consultant in the Brisbane Registry.

7. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to this matter.

8. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

9. The parties shall do all such things, sign all such documents, pay all such reasonable fees and attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for the preparation of the Family Report.

10. An injunction issue restraining each party from removing and/or causing and/or allowing the child to be removed from the Commonwealth of Australia.

11. The Australian Federal Police place the name of the child born … March 2002 (a female), upon the PACE Alert Sytem in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the PACE Alert System until further Order of this Court.

12. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the child born … March 2002 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.

13. Forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

14. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

15. Within 48 hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Jeffree 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: TVC 859 of 2012

Mr Jeffree

Applicant

And

Ms Wallace

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the parties met in Far North Queensland in about October 2000 and separated in late 2002. There is one child the subject of these proceedings, namely J, who was born in March 2002.

2. Currently, the Father resides in Newcastle with his new partner, Ms C, and an affidavit by Ms C, sworn 13 August 2012, has recently been filed.

3. The Father is unsure of where the Mother lives, beyond that she lives in Far North Queensland. The Father believes that the Mother has a number of children living with her, including E, who is approximately 16 years of age who has a child born about six months ago, H aged about 13 years of age, the subject child J, who is aged 10, D, aged about four years, and B, aged about five years.

4. Essentially, the Father’s material indicates that the Father has received some information from a Mr N, who has present proceedings in the Family Court in Townsville involving the Mother. That information is to the effect that the child, who as I have noted is 10 years of age, may be subjected to physical and/or sexual abuse by another child of the Mother, namely H, who is, as noted, about 13 years of age. On the Father’s information, H has admitted to having committed sexual acts with another child of the Mother, B, aged five, who is the child of Mr N.

5. It would appear on the Father’s material that the Mother has a history of relocating without informing the Father, and it seems that for about the past two years or so, the Father has not been aware of the Mother’s address, although he is generally aware of the city in which she lives.

6. The Father has previously been informed by the Mother that the Mother’s eldest child, E, has previously been violent towards the child to the extent where it is suggested that E had to be removed from the household to spend some six months with the Mother’s uncle in Brisbane. The Father’s information is to the effect that E is now residing back with the Mother with her own child.

7. The Father has filed an Initiating Application on 14 August 2012 and his affidavit in support of that application as well as the affidavit of Ms C referred to. The Father sought an urgent hearing, which has been facilitated by the Court, and he seeks a number of interim Orders to be made pending the filing and service upon the Mother and an interim hearing to take place when the Mother has been served.

8. Rule 5.12 of the Family Law Rules 2004 (Cth) provides for an application to be made without notice. On such an application, an Applicant must satisfy the Court about why an Order should be made without notice to the other party. Relevantly, I am satisfied on the material, which of course is untested in circumstances where the Mother is yet to be served, that the Applicant satisfies the Court as to the making of Orders notwithstanding that the Mother has not yet been served the material and she has not yet had the opportunity to test it.

9. In respect of the Initiating Application filed on 14 August 2012, a number of interim Orders are not pressed this morning because of the non-service of the Mother at this stage, but it seems to me that the interests of the child are best served by making Orders in terms of paragraphs 1, 2, 3, 4, 9, 10 and 11 of the Initiating Application filed 14 August 2012, and I will so Order. I will make a further Order that the further interim hearing of this application be adjourned to the Registry for a date to be fixed and for the parties to be notified of that date. Obviously, the fixing of a new date will need to take into account that I have ordered that a family report be prepared, and of course all this is predicated upon the Mother being located and served with the material. I therefore Order that the Applicant notify the Court when service of the application has been effected for the purpose of the Court allocating a fresh hearing date.

10. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 August 2012.

Associate: 

Date:  22 August 2012