McGarat and England

[2009] FamCA 1004

FAMILY COURT OF AUSTRALIA

MCGARAT & ENGLAND [2009] FamCA 1004

FAMILY LAW – CHILDREN – interim orders – where the children were not delivered to the father pursuant to a previous order of the Court – where the mother did not attend Court – order made for the recovery of the children – order stayed to give the father an opportunity to collect the children

Family Law Act 1975 (Cth) s 67U

APPLICANT: Mr McGarat

RESPONDENT: Ms England

INDEPENDENT CHILDREN’S LAWYER: SRG Lawyers

FILE NUMBER: ADC 67 of 2007

DATE DELIVERED: 23 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Croydon

SOLICITOR FOR THE APPLICANT: Croydons

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER SRG Lawyers

Orders

1. Until further order the children S born on … March 2000 and L born on … March 2002 live with the father and that he have sole parental responsibility for the children.

2. The mother is restrained and an injunction is granted restraining her from attending at the children’s school at any time today and she is also restrained from arranging for anyone else to collect the children from their school today.

3. The father is directed to attend to collect both children S and L from the P Primary School today.

4. Pursuant to Section 67U of the Family Law Act 1975 as amended THAT a Recovery Order do issue authorising the taking possession of the children S born on … March 2000 and L born on … March 2002 and the delivery of such children to the applicant father MR MCGARAT forthwith at Lot 2, …, P in the State of South Australia or at such other place as the applicant father and the person effecting such recovery agree to be appropriate

5. The Recovery Order is to be stayed until 4.30 pm today and will come into effect only if Ms Croydon’s Office notifies the Regional Registry Manager of this Court that the children have not been collected by the father or not been delivered up to the father today.

6. The father’s solicitors serve the mother by providing a copy of all documents to the maternal grandmother by facsimile (such facsimile number to be supplied by the maternal grandmother to the father’s solicitors) and by forwarding to the mother care of Post Office, N in particular a copy of the sealed orders of the Honourable Justice Burr of the 9 October 2009 and orders made today by the Honourable Justice Dawe.

7. Further consideration of the final orders is adjourned to 24 November 2009 at 11.30 am before a Registrar for directions concerning the final orders and what steps should be taken depending on whether the mother has filed any proceedings or not.

8. Leave is given to all parties to inspect and if necessary copy documents produced under subpoena to the Court by Families SA (Schedule No 2).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 67 of 2007

MR MCGARAT

Applicant

And

MS ENGLAND

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me in the duty list as a result of the matter being adjourned by Justice Burr on 9 October 2009.  On that day the Court had before it the application of the father for the immediate return of the children.  The father was represented by Ms Croydon and there was no appearance by or on behalf of the mother.  The question remained whether she was aware of those proceedings at that time.  However, the orders made by Justice Burr on 9 October 2009 provided for the discharge of the consent orders which had been made by the parties on 16 March 2009, in particular paragraphs 1, 2, 3, 4, 5 and 6 of those orders.

2. His Honour then ordered the appointment of the Independent Children’s Lawyer and specifically requested that the previous Independent Children’s Lawyer, Mr Reynolds, be appointed.  Mr Reynolds appears today but, regrettably, does not yet have formal notification from the Legal Services Commission of his appointment. 

3. Other orders made by Justice Burr on that day relate to location orders directed to Centrelink, South Australian Police and Department of Families and Communities and injunctions restraining the mother from removing the children from South Australia or from applying for passports for them. 

4. There were other specific orders made including leave to issue a subpoena directed to the maternal grandmother to attend Court today to give evidence if necessary. 

5. Paragraph 7 of the order of 9 October made by Justice Burr is:

   “The mother do immediately deliver up the said children, [S] and [L], to the father.”

6. Paragraph 14 stated:

   “And it is further ordered during the period of the adjournment and until further order of the Court that the children, [S] and [L], live with the father and that he have sole parental responsibility for the children.”

7. I am being requested by Ms Croydon to clarify that order and I do so today upon the basis that I order until further order the children, S and L, live with the father and that he have sole parental responsibility for the said children.

8. I turn now to the question of the orders which I am being asked to make today and the evidence which I have before me today. 

9. The subpoena to the grandmother was successful and the grandmother attended before the Court today and gave sworn evidence.  She was prepared to do so having made some notes.  She asserted that her daughter’s address was at all times “known to everyone” and that there was no secret about it.  The address she gave is an address in V.  She advised the Court that the children were both attending P School. 

10. She had discussed the proceedings with her daughter (the mother of the children).  The mother was aware that the matter was on before the Court today.  She said her daughter’s explanation for failing to attend Court today (although the daughter was aware of these proceedings and that they related to serious orders concerning the two children) was that the mother did not want to appear unless she was represented by a lawyer.

11. The grandmother gave evidence that the mother had been attempting to get legal representation for some time but had not been successful. 

12. It should be noted that the children were removed from the care of the father when the mother took them from their school in July of this year.  It should also be noted that the consent orders of the parties provided that each of the parties were restrained from moving the school of the children from their school at P.

13. The maternal grandmother also gave evidence that the mother had a postal address at the N Post Office.  She said that she was concerned about the welfare of her grandson, whom I interpreted to be S, because of the father facing charges asserted by the grandmother to be for assault upon S. 

14. When Justice Burr heard this matter on 9 October 2009 the police had responded to the subpoena by indicating that there was a file which related to an allegation of an alleged aggravated assault by the father upon S. 

15. The father has filed his affidavit material in which he refers to incidents in relation to the children, in particular, smacking S. 

16. The Court is informed by counsel for the father today that the father has not been interviewed by the police in relation to any possible assault charges in relation to an assault upon S. 

17. The Court was also informed from the bar table today that when the proceedings in relation to the restraining order were heard on 14 October the mother did not attend and the matter was adjourned.  It therefore appears that the restraining order in relation to the father has been continued, but the Court has the capacity to make an order which has the effect of setting aside that restraining order where the Court is dealing with the interests of the children pursuant to the Family Law Act 1975 (Cth).

18. Justice Burr made the order on 9 October that the mother immediately deliver up the children, S and L, to the father.  The orders were made on the basis that Justice Burr was also aware of, and read, the letter from the South Australian Police to which I have referred. 

19. In those circumstances, there is no new information available to the Court which would make it appropriate to set aside the order which Justice Burr made on 9 October requiring the mother to immediately deliver up the children, S and L, to the father. 

20. There may be a question as to whether the mother is aware of the specific terms of the order of 9 October 2009.  However, I take into account the material filed by the father and, in particular, the failure of the mother to inform the father of the children’s current whereabouts, their current school and, specifically, the mother failing to attend these proceedings today or take any action in this Court or the Federal Magistrates Court to bring to the attention of the Court any concerns she may have in relation to the children.

21. I am being asked to make an order requiring that a recovery order do issue authorising the Police Force of the Commonwealth and all members of the Police Forces of the States and Territories to recover the children and to deliver them to the father forthwith.  I am concerned about the children having to be placed in a position whereby there may be possible trauma as a result of the intervention of the police in those circumstances so I propose to give the father an opportunity to collect the children from the school which they are currently attending and, if that is not possible, then to issue the recovery order.

22. I have taken into account all of the factors requiring that any orders I make under Part VII of the Family Law Act should be orders which are in the best interests of the children. 

23. I have carefully considered the question of violence which is referred to in the father’s affidavits and the concerns of the grandmother in relation to the allegations of violence.  I am particularly concerned about balancing those allegations in the context of the sworn affidavit material of the father in which he answers the concerns which he anticipates might be raised by the mother and places them before the Court on a voluntary basis.

24. Until such time as the mother therefore brings appropriate proceedings in an appropriate manner and takes steps to obey the Court orders I consider it to be in the best interests of the children that they be returned to their father but a condition shall be that he is restrained from using any form of physical discipline of the children during the time when the children are in his care.

25. I will note that the maternal grandmother has volunteered to provide Ms Croydon with a fax number so that the documents can be faxed to the mother, care of her mother, this afternoon or some time today.

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

Associate: 

Date:  27 October 2009