Lane and Irwin

[2012] FamCA 650

FAMILY COURT OF AUSTRALIA

LANE & IRWIN [2012] FamCA 650

FAMILY LAW – CHILDREN – Urgent application for parenting Orders - Where consent Orders were made for the child to live with the Respondent Mother in July 2006 - Where the Father has recently received reports that the child is not being fed or sent to school by the Mother - Where the Mother plans to move home today - Where there is independent evidence of substantial absences from school by the child

Family Law Rules 2004 (Cth)

APPLICANT: Mr Lane

RESPONDENT: Ms Irwin

FILE NUMBER: TVC 831 of 2012

DATE DELIVERED: 8 August 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Kent J

HEARING DATE: 8 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kroon Legal

Orders

Upon the undertaking of the Applicant Father to remain in Townsville for the purpose of attending the proposed hearing at 9.30 am on 13 August 2012 before Federal Magistrate Coker:

1. The Applicant Father have sole parental responsibility for J, born … July 2001 (“the child”).

2. The child live with the Father in Townsville in the State of Queensland.

3. The child spend time with and communicate with the Respondent Mother at times agreed between the parties.

4. Should the Respondent Mother not hand over the child, J, born … July 2001, to the Applicant Father by 2.00 pm today, Wednesday 8 August 2012, a Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and 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.

5. Should the Recovery Order issue, such persons are authorised and directed to find and recover the child 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 child may be found.

6. Should the Recovery Order issue, the child is to be delivered to the Applicant Father to such address as agreed to between the person executing the Recovery Order and the Applicant Father.

7. Should the Recovery Order issue, it will remain in force for a period of six months.

8. The Initiating Application filed by the Applicant on 8 August 2012 be otherwise adjourned to a hearing before Federal Magistrate Coker at 9.30 am on Monday 13 August 2012.

9. Short service of the Initiating Application, the two affidavits and the Notice of Child Abuse and Family Violence filed by the Applicant Father on 8 August 2012, together with this Order, be permitted and be effected forthwith upon the Respondent Mother with all necessary times abridged for the purpose of the further hearing on Monday 13 August 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Irwin 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 TOWNSVILLE

FILE NUMBER: TVC 831 of 2012

Mr Lane

Applicant

And

Ms Irwin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern J, born in July 2001 (“the child”). An Initiating Application seeking an urgent hearing was filed in the Federal Magistrates Court on 8 August 2012, together with a Notice of Child Abuse or Family Violence in Form 4 and affidavits in support of both the Notice and the Application, with both affidavits being sworn 7 August 2012

2. The Applicant is the father of the child and the Respondent named on the application is the child’s mother, Ms Irwin. The parties separated in about early 2006 and as already noted, the child had been born in July 2001.

3. Orders were made by consent in the Family Court at Cairns on 20 July 2006. Essentially, those Orders provided for the child to live with the Mother, for the parties to have shared parental responsibility and a variety of other Orders in relation to the Father spending time with and communicating with the child.

4. For reasons which will become apparent, the Initiating Application and the supporting documents referred to have yet to be served upon the Mother.

5. Following the parties’ separation, the Father deposes to the Mother having moved with the child to various locations, but being currently located in Townsville. The Father lives in Western Australia.

6. Early on 6 August 2012, a couple of days ago, the Father received a telephone call from one Ms B, who informed the Father that she was the landlord of the premises where the Mother and the child currently reside. The landlord explained to the Father that the child had come to her to help facilitate that telephone call to the Father, and indeed Ms B put the child on the telephone to the Father. The child, according to the Father’s affidavit, told the Father that he wanted to come and live with the Father as his mother had not been feeding him or sending him to school. The child further informed the Father that his mother, “…spent all her time drinking or passed out from drinking.”

7. The Father spoke to Ms B, who confirmed that the Mother apparently spent all of her time in the tenanted property, “…drinking and smoking.” Ms B also advised the Father that she had fed the child meals on several occasions.

8. A friend of Ms B, one Ms S, also spoke to the Father in that telephone call. Ms S apparently has a child who is a friend of the child, and Ms S provided information to the effect that she has also fed the child, “…as he wasn’t being fed at home.”

9. The Father made contact with the Department of Communities, Child Safety and Disability Services, but they apparently advised that they would not intervene, “…without evidence.” The Father also contacted the police, but for reasons not clear to me, the police advised the Father that they would not conduct a welfare check. The Father did contact the child’s school, who confirmed to the Father significant absences of the child from school. The Father obtained the semester 1, 2012 report card for the child, and a copy of that report is attached to the Father’s affidavit. Notably, it records that in Semester 1, there have been some 27 days upon which the child was absent, and the report notes that 3 of those days were unexplained. No explanation is contained in the body of the document as to why the child would have been absent for as many as 27 days in one semester.

10. It would appear that currently, the child is not attending school.

11. Clearly enough, on the evidence advanced by the Father, there arise significant concerns as to the welfare of the child, and it is on that basis that I order that, until further Order and the matter can be heard again on Monday next, that the Father have sole parental responsibility and that the child come into the care of his father.

12. Rule 5.12 of the Family Law Rules 2004 (Cth) makes provision for applications to be made to the Court without notice to the other party. I am satisfied within the meaning of r 5.12 that the present Orders should be made without notice to the Mother, particularly in circumstances where provision is made for short service of the Initiating Application and supporting material, and where the Mother has an opportunity to be heard within a matter of days, namely Monday. In the meantime, the Order is predicated on the basis that the Father will be living in Townsville with the child until there can be a further hearing.

13. For those reasons, I make the Orders as set out at the commencement of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 August 2012.

Associate: 

Date: 9 August 2012