McCall & Clark - [2009] FamCA 92

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON (NO. 2)

[2009] FamCA 92

FAMILY LAW - CHILDREN - mother ordered to produce child to court and appear herself - failed to do either - warrant issued for arrest

Family Law Act 1975 (Cth)

FATHER:

Mr Denfert

MOTHER:

Ms Avron

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

7099

2008

DATE DELIVERED:

9 February, 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

9 February 2009

REPRESENTATION

SOLICITOR FOR THE FATHER:

Ms. Altavilla

SOLICITOR FOR THE MOTHER

No appearance

INDEPENDENT CHILDREN'S LAWYER

Ms M. Pandelli

Maria Barbayannis & Co

Orders

That pursuant to rules 21.16 and 21.17 of the Family Law Rules 2004, that a warrant issue directed to the Marshall and to all members of the Australian Federal Police and of all State and Territory police forces to arrest the mother, MS AVRON born … April, 1973 and to bring her before this Court or another court exercising jurisdiction under the Family Law Act 1975.
That pursuant to rule 21.19(2) of the Family Law Rules 2004 a person who arrests the mother pursuant to the warrant issued pursuant to these orders must take all reasonable steps to ensure that, before the mother is brought before a court, the independent children’s lawyer is advised about :
(a)the arrest;
(b)the court before whom the mother will be brought; and
(c) the date and time when the mother will be brought before a court;
and to facilitate compliance with this order, the independent children’s lawyer can be contacted on (03) … or ….
That all extant applications be otherwise adjourned to :
(a)if after arrest the mother is brought before this court, that date; and
(b)if after arrest the mother is brought before another court exercising jurisdiction under the Family Law Act 1975, to a date to be fixed by the judicial officer before whom the mother is then brought.
That the reasons for judgment this day be transcribed and a copy placed on the court file.
That the preparation of these orders be expedited forthwith.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7099 of 2008

MR DENFERT

Father

And

MS AVRON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This case concerns the parties' daughter, who was born in September 1998. The background has been set out in a number of earlier rulings and I do not propose to repeat it.
On 23 January, the mother having failed to appear and having failed to contact her solicitors (who did appear), I ordered that she attend court today, whether legally represented or not, and that she produce the child to the child-minding room on the fifth floor of this building…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCall & Clark

Details

AGLC: McCall & Clark [2009] FamCA 92
Case: [2009] FamCA 92
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the matter of *McCall & Clark*, Brown J of the Family Court of Australia issued orders concerning the mother, MS AVRON. The dispute involved the mother's failure to comply with previous court orders, leading to the application for her arrest.

The primary legal issue before the court was whether to issue a warrant for the arrest of the mother due to her non-compliance with the Family Law Act 1975 and the Family Law Rules 2004. The court was also required to determine the appropriate procedures to be followed upon her arrest, particularly concerning notification of the independent children's lawyer.

Brown J ordered that a warrant issue for the arrest of the mother, directing the Marshall and all members of the Australian Federal Police and State and Territory police forces to apprehend her and bring her before the Court or another court exercising jurisdiction under the Family Law Act. The court further ordered that reasonable steps be taken to ensure the independent children's lawyer is advised of the arrest, the court to which she will be brought, and the date and time of her appearance. Extant applications were adjourned pending the mother's appearance before a judicial officer.

Orders

Orders of the court

That pursuant to rules 21.16 and 21.17 of the Family Law Rules 2004, that a warrant issue directed to the Marshall and to all members of the Australian Federal Police and of all State and Territory police forces to arrest the mother, MS AVRON born … April, 1973 and to bring her before this Court or another court exercising jurisdiction under the Family Law Act 1975.

That pursuant to rule 21.19(2) of the Family Law Rules 2004 a person who arrests the mother pursuant to the warrant issued pursuant to these orders must take all reasonable steps to ensure that, before the mother is brought before a court, the independent children’s lawyer is advised about :

(a) the arrest;

(b) the court before whom the mother will be brought; and

and to facilitate compliance with this order, the independent children’s lawyer can be contacted on (03) … or ….

That all extant applications be otherwise adjourned to :

(a) if after arrest the mother is brought before this court, that date; and

(b) if after arrest the mother is brought before another court exercising jurisdiction under the Family Law Act 1975, to a date to be fixed by the judicial officer before whom the mother is then brought.

That the reasons for judgment this day be transcribed and a copy placed on the court file.

That the preparation of these orders be expedited forthwith.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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