MCLEAN & CROLE

[2015] FCCA 2799

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCLEAN & CROLE [2015] FCCA 2799

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where father retained children in his care and did not return them to the mother – parties should not “take the law into their own hands” – where a parent has concerns about the other parent’s care of the children that party should apply to the Court – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS MCLEAN

Respondent: MR CROLE

File Number: SYC 6405 of 2012

Judgment of: Judge Scarlett

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Sydney

Delivered on: 12 October 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Hope

Solicitors for the Respondent: Marsdens Law Group

ORDERS

Until Further Order:

1. The Applicant Mother is restrained from relocating the residence of the children, X, born (omitted) 2006 and Y, born (omitted) 2008 away from the (omitted) area.

2. The Respondent Father is to return the children, X and Y, to the care of the Mother by 6:00pm on Wednesday, 14 October.

3. The Respondent is to file and serve a response in an affidavit stating the facts upon which he seeks to rely within seven days.

4. In accordance with section 11F of the Family Law Act, the parties are to attend a Child Dispute Conference with a family consultant and in accordance with section 11C of the Act that conference is to be reportable.

5. The interests of the children, X born (omitted) 2006 and Y born (omitted) 2008, are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act and Legal Aid New South Wales is requested to arrange such representation;

6. Within 14 days, the parties are to forward to Legal Aid New South Wales, 323 Castlereagh Street, Sydney, copies of all applications, responses, notices of risk, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed;

7. The Independent Children’s Lawyer, when appointed, has leave to issue up to 10 subpoenas without charge or further leave of the Court;

8. I grant liberty to apply on seven days’ notice.

9. The Application is adjourned to Monday 23 November for further mention at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6405 of 2012

MS MCLEAN

Applicant

And

MR CROLE

Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court for, amongst other things, a recovery order in respect of the parties’ children X and Y.  X was born on (omitted) 2006.  Y was born on (omitted) 2008.  The Mother seeks orders by means of an Application filed on the 6^th of this month that:

   (1)The children should live with her;

   (2)the Respondent should return them to her care forthwith; and

   (3)a recovery order should issue.

Background

1. The facts alleged are that there have been some disagreements between the parties for some period of time and that on 20^th September the Father retained the children in his care. The Mother claims that the Father said that he was planning to change the children’s school. 

2. Ms Hope, who appears for the Respondent Father, tells the Court that his actions were prompted by the Mother’s threat, as he perceived it, to relocate the children out of the shire, particularly away from (omitted), to a point on the (omitted). 

3. The parties have had some discussions today and the Mother has been fortunate to have the services of Ms Foini, a duty lawyer from Legal Aid, to assist her.

Consideration

1. The parties have been unable to reach agreement.  The first point that needs to be made is that if one party, being a father or a mother, has concerns about the way the other party is looking after the children or wishes to take steps to stop the other party from acting in a precipitate manner, that party should bring the matter to Court. It is not appropriate for people to take the law into their own hands by retaining the child or children, except in the most extreme circumstances.  If a party does feel the need to retain the children in his or her care, then that party should be the applicant, not the respondent. 

2. Certainly, the Mother has mentioned in her affidavit some plan at some stage to relocate to the (omitted).  She does not say where or when and there are no immediate plans.  Certainly, the impression that comes from the affidavit is that financially she would be better off, claiming that the Father has not been paying child support payments since 2013. 

3. If a party seeks to relocate the residence of the children away from the area where they customarily live in such a way that it makes it difficult or well nigh impossible for the other party to spend time with those children in the way that has occurred up till now, whether it be under parenting orders or a parenting agreement, then they need to obtain either the agreement of the other party or the leave of the court.  Again, unilateral relocation can often see an order from a court requiring a party to relocate back until the matter can be resolved.

4. At this stage, the Respondent has not filed any documents.  Ms Hope, his solicitor, indicates that he could get a response and an affidavit on within seven days.  It is also suggested that this may well be a matter which needs the assistance of an Independent Children’s Lawyer and there are some allegations which would support that.  Ms Foini tells me that the Mother wishes to apply for a grant of Legal Aid and obtain other representation, because with the best will in the world a duty lawyer is just that and not a long-term lawyer.

5. Ms Foini tells the Court the Mother would need about six weeks to get that in place.  There need to be some orders made now to restore the situation.  This would be quite the wrong time for the children to go from one school to another, if that is the Father’s plan.  It would certainly be the wrong time for the Mother to make any sort of a unilateral relocation of the children’s residence.

Conclusions

1. I propose to make orders that the Mother until further order would be restrained from relocating the residence of the children away from the (omitted) area.  The Father should return the children to the care of the mother by 6:00pm on Wednesday evening.  The Father should get his material on within seven days.  The parties will need to attend a Child Dispute Conference with a family consultant and the solicitors who are here can assist them to obtain an appointment. I will make an order for the appointment of an Independent Children’s Lawyer[1].

   [1] Re K (1994) 17 Fam LR 537; FLC 92-461

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 October 2015