MARLOWE & PAXTON

[2015] FCCA 1052

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARLOWE & PAXTON [2015] FCCA 1052

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – recovery order – appointment of independent children’s lawyer – application transferred to Wollongong Registry.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 67Q, 68L

Applicant: MS MARLOWE

Respondent: MR PAXTON

File Number: WOC 346 of 2015

Judgment of: Judge Scarlett

Hearing date: 24 April 2015

Date of Last Submission: 24 April 2015

Delivered at: Sydney

Delivered on: 24 April 2015

REPRESENTATION

Solicitor for the Applicant: Ms Vardanega

Solicitors for the Applicant: Johnson Horsley Lawyers

Solicitor for the Respondent: Ms Williams

Solicitors for the Respondent: Ormeau Legal

ORDERS

UNTIL FURTHER ORDER

1. The Respondent is to return the child [X] born [omitted] 2007 to the care of the Applicant Mother within three (3) days of the date of this Order.

2. A Recovery Order in accordance with section 67Q of the Family Law Act 1975 is to issue but lie in office until further order.

3. As provided by section 68L of the Family Law Act 1975 the interests of the child [X] born [in] 2007 are to be independently represented by a lawyer and for this purpose Legal Aid NSW is requested to arrange this representation.

4. The parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW at Wollongong NSW for the attention and use of the Independent Children’s Lawyer when appointed within fourteen (14) days of the date of these Orders.

5. The Independent Children’s Lawyer is granted leave to issue ten (10) subpoenas without charge.

6. The Application is adjourned to Tuesday 2 June 2015 for mention at 9:30 am before Judge Altobelli in the Wollongong Registry.

7. The Applicant’s costs are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 346 of 2015

MS MARLOWE

Applicant

And

MR PAXTON

Respondent

REASONS FOR JUDGMENT

Application

1. The fact of this case is that arrangements were made between the parties for the child, [X], to spend some time with the Father.  The Father decided, on grounds which he quite clearly considers are good grounds, not to return the child to the care of the Mother.  Unless there are most exceptional circumstances, the Court is always going to say that parties should not take the law into their own hands.  If a party does take the view that a child should not be returned to the care of the person in whose care that child normally is, that party has an obligation to bring the matter before the Court at the first possible opportunity. 

2. As it is, it is the Mother who is the Applicant. She has commenced these proceedings, seeking the return of the child. The matter has been listed before me as a matter of urgency, even though it is a Wollongong matter and it will return to Wollongong. I am mindful of the fact that the Father expresses fears that the child may be subject to serious psychological harm. That may or may not be the case. That is a matter that will need to be investigated. Certainly there are grounds for this child’s interests to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 (Cth) and I propose to make such an order and request that Legal Aid New South Wales arrange for that representation.

3. The parties will need to forward to Legal Aid New South Wales at the Wollongong office, within 14 days, copies of all applications, responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.  I will give the Independent Children’s Lawyer leave to issue up 10 subpoenas without charge.  The matter will go back to Wollongong and will be listed before my learned colleague, Judge Altobelli.  I have a date available, which will be 2^nd June 2015, which I think is a Tuesday and that will be back at the Wollongong Registry.  But whilst I see there are a whole lot of other orders sought by the Applicant, those are going to be a matter for his Honour.

4. I will order a transcript of my reasons for this decision and I would like that on a next day basis.  What I propose to do is place the transcript of my reasons on the Court file before it is sent down to Wollongong for the benefit of my learned colleague, so that his Honour will readily see why it is I have chosen to make the orders that I have. 

5. We start by returning this child to where she was and initially that can happen by arrangements between the parties’ solicitors.  If that does not work then the recovery order will issue. The matter will be back in Wollongong on 2 June at half past nine in the morning.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  27 April 2015