McCall & Clark
[2009] FamCA 92
•9 February 2009
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 | of | 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 by 9.30 am. Orders provided that the child not be thereafter removed, save at the direction of Ms W or by court order.
Ms W was named in that order because she is the family consultant appointed to prepare a family report. To do that, she must have an opportunity to speak with the parties and with the child, and to observe the child with her parents.
On 23 January, I made it clear that if the mother failed to appear today, the independent children's lawyer and the father would have leave to apply for a warrant to issue to arrest the mother. The mother has not appeared today and the child has not been produced to the child minding room. The order was personally served on the mother and contained a paragraph referring to the potential for a warrant to issue.
The independent children's lawyer has contacted the child’s school. She is not at school today. She was at school for four days last week, missing 3 February. Today's absence was foreshadowed, but the independent children's lawyer is not able to say what explanation was given for the absence.
I am satisfied that a warrant should issue to bring the mother before the court. I have before me an affidavit of service of the order of 23 January. It was served on the mother at 8.10 pm. on 1 February, 2009 and an acknowledgement of service was signed. I note that the process server deposes to a number of prior attempts; she was unable to effect service earlier despite two attempts in the evening of 29 January, and one attempt during the day on 31 January.
I propose to order, pursuant to Rules 21.16 and 21.17 of the Family Law Rules 2004 that a warrant issue directed to the Marshall and all members of the Australian Federal Police and all State and Territory police forces to arrest the mother, Ms Avron, born in April 1973, and to bring her before this court or another court exercising jurisdiction under the Family Law Act 1975.
Pursuant to Rule 21.19(2) of the Family Law Rules 2004, a person who arrests the mother pursuant to a 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 the arrest, the court before whom the mother will be brought and the date and time when the mother will be brought before a court. To facilitate compliance with this order, the orders will contain phone numbers for Ms Pandelli, the independent children’s lawyer.
All extant applications will 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 will no doubt depend where she is when she is arrested.
I certify that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2009.
…………………………………………
Associate.
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