Leary & Gilbert

[2021] FCCA 1438

FEDERAL CIRCUIT COURT OF AUSTRALIA

Leary & Gilbert [2021] FCCA 1438

File number:	DNC 206 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	20 May 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – concerning a child who is eight years old – where the father is seeking a recovery order – where the child was previously living with the father in Town B – where the father alleges the child is exposed to unstable living arrangements in the mother’s care – where the mother has failed to appear at the hearing – Court satisfied the child should be returned to the father’s care
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	11
Date of hearing:	20 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Franklin of North Australian Aboriginal Family Legal Service
The Respondent:	No appearance by the Respondent

ORDERS

DNC 206 of 2021

BETWEEN:

MR LEARY

Applicant

AND:

MS GILBERT

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	20 MAY 2021

THE COURT ORDERS THAT:

1.That the child X born in 2012 live with the father.

2.That the mother MS GILBERT immediately deliver the child to the father MR LEARY or to some other person(s) he nominates in writing to receive the child on his behalf at such place as the applicant father and mother agree failing which a recovery order do issue.

3.That the father is to arrange service of a sealed copy of these orders upon the mother as soon as practicable.

4.That the matter is adjourned to 26 July 2021 at 11.00am for mention.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for a recovery order for a child who is eight years old.  The mother was served with the application on 13 May 2021. This was one week ago from today.

2. I am sitting in Adelaide and dealing with this matter by telephone. The mother has not appeared today by telephone. Further, there is no indication that she has appeared at the Darwin Registry or in person at the courtroom in Darwin.

3. The applicant father says that this child lived in an unstable existence between him and the mother up until the middle of 2020 when the child was left with a relative in Town C. In September 2020 the child then went to live with the father in Town B where she has been enrolled in school. 

4. I asked the father’s counsel whether the child was enrolled at a school in Darwin, which is where the mother currently resides.  The father’s counsel made submissions that there is no evidence that the child is enrolled at a school in Darwin. If the child had been enrolled at a Darwin school I could have made an order that the child live with the father and authorise the father to collect the child from school. However, it appears that this is not the case. 

5. I was made aware by submissions, though it is not in the applicant’s affidavit, that the father had spoken to the child relatively recently by telephone. I asked for the telephone number that the father rang to speak to the child. However, after inquiry, I was told by the father’s counsel that the father’s telephone was broken and he was not able to retrieve the number. 

6. Based on the information before me, it appears the child has been removed from stable circumstances and is now living in circumstances that are unclear where there is every indication that the child is not enrolled at a school in Darwin. I am told that the police recently did a welfare check on the child and concluded that she appeared to be okay. 

7. I am being asked to make a recovery order authorising the police to take possession of the child using reasonable force because there is no other option for a gentler and more peaceful way of transferring the child into the father’s care. Naturally, that concerns me.  In my experience it is a rare situation that there is no way of communicating with the other parent or avoiding the use of the police.  Regrettably, it has been my experience that in this Court, when ex parte orders are sought, the obligation of complete disclosure is not often complied with.  However, I am not saying this is the case here.

8. I will orders having regard to the affidavit of the applicant father where he says the child has been in his care since September last year.   

9. I will make an order until further order:

   (1)That the child live with the father;

   (2)That the mother, or whoever else may be in possession of the child, is to deliver the child to the father immediately; and

   (3)If the child is not delivered, a recovery order is to be issued.

10. I will also note that I was informed by Ms Franklin that her client will travel to Darwin immediately to collect to the child.  

11. Otherwise I will adjourn the matter for mention to 26 July 2021 at 11:00am. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       25 June 2021