Lipmann & Flemming (No 2)

[2024] FedCFamC2F 1416

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lipmann & Flemming (No 2) [2024] FedCFamC2F 1416

File number(s):	DUC 305 of 2024
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	19 September 2024
Catchwords:	FAMILY LAW – Parenting – Application for recovery order – Child under a NSW Children’s Court order – Child welfare officer of State of NSW consent in writing to orders – Where orders were made for return of child by father several days prior – Child not returned pursuant to earlier orders – Recovery order made.
Legislation:	Family Law Act 1975 (Cth) s 69ZK
Division:	Division 2 Family Law
Number of paragraphs:	7
Date of hearing:	19 September 2024
Place:	Melbourne
Solicitor for the Applicant:	Ms Blockley-Ireland, Allwright Bourke Lawyers and Conveyancing
The Respondent:	No appearance

ORDERS

DUC 305 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS LIPMANN

Applicant

AND:

MR FLEMMING

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	19 SEPTEMBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.Order 10(ii) and (iii) of the Orders of 16 September 2024 (the September/October 2024 School Holiday time) be and is suspended.

AND THE COURT ORDERS THAT:

2.Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(a)to find and recover the child X born in 2010 and to deliver the child to the applicant Mother at such place as the Mother and the person effecting such recovery agree to be appropriate and to contact the Mother on her mobile on …; and

(b)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/ren may be found.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.

2. In the matter of Lipmann & Flemming, the matter came before me on an urgent basis in a busy duty list on Monday, 16 September 2024.  Ms Lipmann, the applicant mother (‘the Mother’), was represented by solicitors, and Mr Flemming, the respondent father (‘the Father’), appeared in person on the telephone representing himself.  The Father had filed an affidavit on 11 September setting out his side of the story.  The Father stated in that affidavit:

   I have no problem with [X] calling or visiting his mother whenever he wants to but at this stage he wants no contact with his mother and fears her actions if he sees her because of the abuse, harassment and manipulation this just leads to his stress and depression this is why [X] while talking to the police they suggested an AVO so he asked for one to be put on his mother.[1]

   [1] At paragraph 13.

3. I rely on and refer to the reasons I delivered on 16 September 2024 in regard to the background and circumstances of this matter.  But the long and the short of it is that X and Y, along with their half-sister B, have lived all their lives with the Mother, save for the short period when NSW Child Protection removed the children from the parents before the children were placed with the Mother by orders made by the NSW Children's Court in 2016 and confirmed by  NSW District Court orders in 2017.  Those orders provided that X and Y live with the Mother and have been in force ever since.  There were issues with the frequency of the Father attending to exercise his time with X and Y.

4. Shortly before late 2024, there was a dispute between X, now just 14 years old, and his mother.  It is controversial as to whether that dispute was over X accessing his mother's vape and the disciplinary measures she put in place, or whether that related to the Mother denigrating X's father.  X attended on police at the local police station who contacted the Father, and allowed the Father to collect X from the police station.  For the reasons that I set out on Monday, I am satisfied that it is in X's interest that he be returned on an interim basis to the household of the Mother, Y and B.

5. The matter was complicated on Monday because, despite the Mother’s solicitor serving the New South Wales Child Protection authorities with court documents and attempting to get their attention, the orders that I could make on Monday were limited by section 69ZK of the Act. I made an order that X be returned to the Mother by 10 o’clock this morning, but that order was only to come into effect upon receipt of the written consent of the Department of Communities and Justice NSW (‘the Department’), or upon the orders of the Children's Court and the District Court no longer applying to X. On Tuesday afternoon I received written consent from the Department, and in those circumstances made orders in Chambers to the effect that the orders made (with the qualification of section 69ZK on 16 September 2024) were to come into effect from 3.44 pm on 17 September 2024.

6. I am satisfied that the Father had notice of the hearing this day, and I will tender as exhibits the emails from my Associate to the Father’s email address (provided by the Father in his affidavit filed 11 September) that provided to him the electronic link for him to attend this hearing, as well as the hearing that had been fixed on yesterday evening – that is, Wednesday evening, which was vacated upon the consent of Child Protection.  I am also satisfied that the Father has notice and is aware of this hearing partly because I told him myself on Monday of this hearing today and because I told him the purpose of this hearing was to consider further the issue of a recovery order in the event that he did not deliver X to the Town C Police Station at 10 am this morning.

7. I am satisfied that the Mother attended the police station at Town C this morning, and that X was not returned to the Mother or to the police station.  In those circumstances, and with great sadness, I am satisfied that it is in X's interest that I issue the recovery order as pressed by the Mother.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 October 2024