Leyton and Stanley

[2009] FamCA 1160

FAMILY COURT OF AUSTRALIA

LEYTON & STANLEY [2009] FamCA 1160

FAMILY LAW - CHILDREN - Recovery Application - Father failed to return the children to the mother at the conclusion of spending time with period - Recovery order made for the return of the children to the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Leyton

RESPONDENT: Mr Stanley

FILE NUMBER: NCC 2934 of 2009

DATE DELIVERED: 18 November 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 18 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Ashby

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

PENDING FURTHER ORDER IT IS ORDERED THAT

1. This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory police services.

2. The persons to whom this recovery order is addressed are authorised and directed to find and recover L born … August 2006 and M born … October 2008 and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the children may be found including the premises situated at:

   a)T Street, W, New South Wales; and

   b)H Street, H, New South Wales.

3. Upon recovery, the children are to be delivered to the mother at K, New South Wales, or to the person nominated by her in writing to receive the children on her behalf.

4. Until the children are returned under these orders, and pending further orders:

   a)The father is prohibited from again removing or taking possession of the children.

   b)The persons to whom this recovery order is addressed are authorised and directed to arrest the father without a warrant if he again removes or takes possession of the children.

5. These orders will remain in force for one month or until the matter is next before the Court, whichever is the sooner.

6. The matter is referred back to the Registrar who will notify the Applicant Mother of the next return date for further procedural orders.

NOTATION

A.The mother’s application for interim orders 1 and 2 set out within the Initiating Application filed on 17 November 2009 is the only application determined by these Orders.  The mother’s application for interim orders 3 to 10 remains outstanding.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2934 of 2009

MS LEYTON

Applicant

And

MR STANLEY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The Application before the Court for hearing today is the Initiating Application filed by the mother yesterday, 17 November 2009. 

2. The Application concerns the children of the applicant mother, Ms Leyton, and the respondent father, Mr Stanley.  The children of concern are L born in August 2006 and M born in October 2008 (“the children”).

3. The parties have been in a relationship over recent years.  That relationship terminated on or about 23 October 2009.  Since 13 November 2009, the children have been detained by the father and the application of the mother is for the issue of a recovery order to recover the children from the father.

4. Although the applicant pursues numerous final and interim orders in her Initiating Application, the only application currently pressed is the application for Interim Order 2 which, as I have indicated, is a recovery order.

5. There is no appearance by the respondent father before the Court today.  The Application was filed on 17 November 2009.  Upon its filing, the application came to the attention of the Registrar who granted short service of the Application upon the respondent father.  The Registrar’s order required that the Application and ancillary documents be served upon the father by 11:00 am today.  The matter came before the Court at 2:00 pm. 

6. As I have said, there was no appearance by the respondent father when he was called. Leave was granted to the applicant mother to file in Court an Affidavit of Service sworn by Mr Mr S on 18 November 2009.  The contents of the affidavit depose to service of the mother’s Application and ancillary documents upon the respondent father at or about 7:50 pm on Tuesday, 17 November 2009.  The Affidavit of Service annexes an Acknowledgment of Service bearing the signature “[P. Stanley]”.  In oral evidence before the Court today, the mother has indicated that she recognises the signature as that of the respondent father. 

7. I am satisfied on the evidence adduced that the respondent was served with the documents upon which the mother relies in compliance with the Registrar’s orders.  I further find that the absence of the respondent father is a voluntary choice by him.  Accordingly, I have permitted the applicant mother to pursue her Application on an undefended basis.

8. In support of her application for a recovery order, the mother relies upon her affidavit filed on 17 November 2009.  It is apparent from the evidence adduced by the mother that the relationship she has previously enjoyed with the respondent father has been tumultuous.  Their relationship has been punctuated by numerous separations and on several occasions the police have been called upon to intervene in incidents of hostility between them.

9. There have been previous parenting proceedings between the parties.  The mother deposes that in or about November 2008 interim parenting orders were made between them concerning the two children, although she does not adduce a copy of those orders.  She understands, as a consequence of inquiries subsequently made by her, that those orders were dismissed in May 2009.

10. The file of the Court relating to those previous proceedings, being file number NCC2389 of 2008, has been made available to the Court.  Perusal of that file indicates that interim parenting orders were made between the parties by consent on 15 December 2008.  The effect of those orders was generally that the children live with the mother and that they spend time with the father on two occasions per week for two hours duration on each occasion.  It was a further order that the time spent by the children with the father, in accordance with that regime, should occur principally in the presence of the mother. 

11. Those interim proceedings came before a Federal Magistrate for hearing on 8 May 2009.  On that occasion, neither party appeared before the Court to prosecute their respective applications and, as a consequence, the father’s Application and the mother’s Response were both dismissed and all previous orders were discharged.

12. I infer from the evidence that the reason for the parties’ non-attendance before the Federal Magistrate on 8 May 2009 was because they had reconciled their relationship.  That inference arises from the text of the mother’s affidavit filed on 17 November 2009.

13. As I have previously indicated, the final separation of the parties apparently occurred on or about 23 October 2009.  There was an incident of hostility between the parties on 3 November 2009.  The mother alleges that she was assaulted by the father on that occasion and she has given evidence today in elaboration of that incident to the effect that the police have prepared the necessary documentation to charge the father with offences arising out of that incident and to execute a warrant for his arrest.

14. The mother’s evidence indicates that as a consequence of private negotiation between the parties, the children were to spend time with the father each alternate weekend, beginning on Friday 13 November 2009.  The father collected the children from the mother on that day and has since refused to return them.  Their agreement was that the children would be returned to the mother on Sunday 15 November 2009, but that has not occurred.

15. The mother has attempted on numerous occasions to contact the father by telephone and text seeking the return of the children to her.  Her efforts have been rebuffed.

16. The mother asserts that the children have never been away from her, that the father has never looked after the children before alone, and that she is concerned that he will be unable to care for the children without assistance.

17. The youngest child, M, has been diagnosed with asthma in the last few months.  The mother has in her possession a nebuliser for use in the control of that condition.  The mother is fearful that the father does not have a nebuliser for the treatment of M should she sustain an asthma attack.  The mother asserts that the father and his step-father are both smokers and that their smoking in the presence of M might exacerbate her condition.

18. In the course of these proceedings, the mother has given some additional oral evidence.  She says that last night she was telephoned by the father.  It would seem from her evidence that the catalyst for the father making that telephone call was that he had shortly beforehand been served with her Application by the process server, Mr S.  At the time of that telephone call, the father said to the mother that he was no longer at W but that he intended attending Court today.

19. The mother alleges that the father said to her that before he attended Court he would hide the girls and that the girls no longer want her.  The mother contacted an officer at the C Police Station this morning.  She reported to the police officer that the father was apparently no longer residing at his mother’s address at W.  She was informed by the officer with whom she spoke that the police had already prepared charge sheets concerning the charges to be proffered against the father arising out of the incident on 3 November 2009, and that the police were then in the process of preparing a warrant to issue for the arrest of the father.  I accept her evidence in that regard.

20. The only inference available from the evidence so far before the Court is that if the police execute the warrant upon the father, the children will be utterly without adult supervision unless they are returned to the care of the mother. 

21. The mother also said in evidence that she was again telephoned this morning by the father.  When that occurred, the phone was given by the father to the eldest child L. L said to the mother that she was then at a location said to be the residence of a person called “A”.  L also said to her mother that she wanted to stay with her father.  When the telephone was passed to the father, he told the mother that he would see her at Court later in the day.  He has not appeared.

22. When called upon to make a parenting order, including a recovery order, the Court is enjoined to bear in mind the best interests of the children. The factors that bear upon the best interests of the children are those set out in s60CC of the Family Law Act 1975 (“the Act”). 

23. The evidence that I have summarised leads the Court inexorably to the conclusion that the best interests of the children would presently be served by returning them to the primary care of the mother.  The evidence mandates an inference that the father is acting so as to prevent any physical interaction between the children and their mother.

24. What subsequently occurs in relation to the imposition of parenting orders is an issue for another day, but I am satisfied on the evidence that it is appropriate that a recovery order be issued in respect of the children. 

25. For those reasons, I make the following orders.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  18 November 2009