Mendoza and Rhodes and Anor
[2012] FMCAfam 1448
•28 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MENDOZA & RHODES & ANOR | [2012] FMCAfam 1448 |
| FAMILY LAW – Children – parenting orders – recovery order – where child lives with maternal grandmother – where applicant claims father took child on Boxing Day – where child has not been returned to the applicant – concerns about child’s welfare. PRACTICE AND PROCEDURE – Urgent Application. |
| Family Law Act 1975, ss.60CA, 67Q Federal Magistrates Court Rules 2001, rr.5.01, 8.01 |
| Applicant: | MS MENDOZA |
| First Respondent: | MS RHODES |
| Second Respondent: | MR AMIS |
| File Number: | NCC 1038 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 December 2012 |
| Date of Last Submission: | 28 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 December 2012 |
REPRESENTATION
| No appearances - heard in chambers |
ORDERS
UNTIL FURTHER ORDER
Leave granted to proceed ex parte.
A Recovery Order is to issue under the provisions of section 67Q of the Family Law Act 1975 for the return of the child [X] born [in] 2008 to the Applicant.
The Application is transferred to the Newcastle Registry for further mention on a date to be fixed by the Newcastle Registry.
IT IS NOTED that publication of this judgment under the pseudonym Mendoza & Rhodes & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
NCC 1038 of 2010
| MS MENDOZA |
Applicant
And
| MS RHODES |
First Respondent
| MR AMIS |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the maternal grandmother for a recovery order relating to the child [X] who was born [in] 2008.
[X] has lived with the Applicant grandmother since 2010. Orders were made by consent in the Newcastle Registry of this Court on 12th March 2012 providing that the child should live with the maternal grandmother, who was to have equal shared parental responsibility for the child with the First Respondent, the Mother
Evidence and Submission
The Application arises out of an incident that occurred on Boxing Day this year. The Applicant deposes in her affidavit sworn today that the parents had not seen the child since 24th August 2012, after an incident where they refused to return him to the grandmother and she had to obtain assistance from the Police.
On Boxing Day, the grandmother received a text message from the parents asking to see [X]. She agreed and took the child to an arranged meeting place at a local park. The grandmother deposes that when the child was with the Mother the Father “jumped out of his car and grabbed [X], pulling him into the car.”
The child has not been returned to the Applicant, who has concerns about his welfare. Both parents have long term drug issues and the father has had an admission to hospital for mental health issues.
The grandmother has expressed concern for the child because he suffers from asthma and the parents do not have any medication for him. She has made an urgent Application to the Court for a recovery Order and the Application has been referred to me by a Registrar.
Evidence
The grandmother gave evidence by telephone. She stated that the situation was unchanged from the time when she made her affidavit. She said that the child requires Ventolin for his asthma and to her knowledge the parents do not have a Ventolin inhaler for him.
Conclusions
As in all parenting matters, the best interests of the child are the paramount consideration (Family Law Act 1975, s.60CA). The evidence before the Court is sufficient to establish urgency and, in an urgent case, where service on the respondents is not practicable, the Court may make an order until further order (Federal Magistrates Court Rules, rule 5.01).
The child should be returned to the grandmother, as provided by the Consent Orders made on 12th March this year. A Recovery Order will issue under the provisions of s.67Q of the Act.
The proceedings will be transferred to the Newcastle Registry, which is where the original orders were made. The parties all reside in the [omitted] area and their solicitors are all based in Newcastle.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 9 January 2013
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