JULIET & RAMSAY

[2011] FamCA 207

FAMILY COURT OF AUSTRALIA

JULIET & RAMSAY [2011] FamCA 207

FAMILY LAW - CHILDREN – application by the father for a recovery order and for suspension of previous orders providing that the mother spend supervised time with the child – best interests – application granted

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Juliet

RESPONDENT: Ms Ramsay

FILE NUMBER: ADC 2341 of 2009

DATE DELIVERED: 17 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. During the period of the adjournment paragraph 6 of the order of 8 July 2010 is suspended.

1. Pursuant to Section 67U of the Family Law Act 1975 as amended THAT a Recovery Order do issue authorising the taking possession of the child D born on … January 2001 and the delivery of such child to the applicant father Mr Juliet forthwith at S Street, H in the State of South Australia or at such other place as the applicant father and the person effecting such recovery agree to be appropriate

1. The final and interim applications are adjourned to 27 April 2011 at 9.15 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2341 of 2009

Mr Juliet

Applicant

And

Ms Ramsay

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. At a time when both of the parties were represented, an Independent Children’s Lawyer had been appointed and counsel for the Independent Children’s Lawyer was also present.  Consent Orders were made which provided for the child D to live with the father and for the mother to spend time with the child each alternate Saturday and Sunday from 11.00 am to 5.00 pm and on other special occasions on condition, amongst other things, that all the time the mother spent with the child be supervised by the maternal grandmother Ms G. 

2. The father has brought the initiating application seeking the recovery order and the suspension of the orders providing for the mother to spend time with the child supported by an affidavit of the father’s which sets out the recent history of the matter.

3. That affidavit which was filed on 15 March 2011 refers to matters which have arisen since the Consent Order was made in July 2010, including concerns about the proper supervision of the time that the mother has spent with the child (referring as it does to comments the child has made to the father about being shown pornography and being subject to abuse by another child). 

4. These types of matters were of concern prior to the Consent Order being made on 8 July 2010. 

5. The affidavit then refers to the events of Sunday 6 March 2011 when the father received a text message from the grandmother’s phone but apparently from the mother saying:

   “I will not be bringing [D] back this time.”

6. The father then drove to the home of the mother and attempted to locate the mother and child.  Since then he has made various attempts through the police and Families SA seeking assistance to locate the child and the mother and to recover the child but has been unsuccessful. 

7. As a result, he brings his application for a recovery order and the suspension of the time spent.  The affidavit of the father indicates that he is not necessarily convinced that the mother’s mother has been fully honest with him as to the whereabouts of the mother and child. 

8. The Court has made it clear to the father that he should get some urgent independent legal advice about bringing an application for location orders and Commonwealth information orders as soon as possible to assist the authorities in carrying out the recovery order.

9. I have taken into account all of the material before the Court and note that the best interests of the child are relevant to the matters to be considered when making a recovery order.  The provisions in section 67Q and 67T, the Consent Orders and the material before the Court at that time have been taken into account as well as the material before the Court filed by the father recently. 

10. I also put the father in the witness box and under oath questioned him as to any other information he might have which would explain or give any possible excuse to the mother for her behaviour.  His evidence on oath is that there is no other information which would explain the mother’s behaviour save and except that the maternal grandmother told the father that the child had said that she wanted to live with her mother and that the father was abusing his fiancée.

11. This allegation (namely that he was in any way abusing his fiancée) was strenuously denied by the father namely that he was in anyway abusing his fiancée. On the information therefore available, taking into account the provisions requiring the best interests of the child to be the paramount consideration and the other provisions of Part VII in the Family Law Act (including in particular section 60CC and both of the primary considerations namely, the need to maintain a meaningful relationship with the child’s parents and the need to protect the child from harm) I am satisfied it is in the best interests of the child to make the order for recovery and to suspend the orders providing for the mother to spend time with the child until such time as the matter returns to the Court and the mother is able to provide an explanation, if possible, for her behaviour and assure the Court of the child’s protection.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 March 2011.

Associate: 

Date:  29 March 2011