Mendoza & Rhodes & Anor
[2013] FMCAfam 12
•2 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MENDOZA & RHODES & ANOR | [2013] FMCAfam 12 |
| FAMILY LAW – Children – parenting orders – location order – where Recovery Order previously issued – where respondents have absconded with child – where Police unable to enforce Recovery Order – best interests of the child – urgency established – special circumstances established – Commonwealth information order issued – location order issued. |
| Family Law Act 1975, ss.60CC, 67K, 67L, 67M, 67N, 67P |
Mendoza & Rhodes & Anor [2012] FMCAfam 1448
| Applicant: | MS MENDOZA |
| Respondent: | MS RHODES |
| Second Respondent: | MR AMIS |
| File No: | NCC 1038 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 January 2013 |
REPRESENTATION
| Applicant: | The Applicant attended by telephone |
| Respondents: | No appearance |
ORDERS
Leave granted to proceed ex parte.
The Manager of the Commonwealth Bank of Australia shall provide to the Registry Manager of this Registry of the Court any information he or she has or obtains about the location of the child [X] born [in] 2008 and the location of MS RHODES (born [in] 1987 of [address omitted]) and MR AMIS (born [in] 1979 of [address omitted]) persons whom the Court has reasonable cause to believe have the child [X].
The Manager of Centrelink and Medicare (Department of Human Services) (“the Department”) shall provide to the Registry Manager of this Registry of the Court any information as is contained in or comes into the records of the Department about the location of [X] born [in] 2008 and the location of MS RHODES (born [in] 1987 of [address omitted]) and MR AMIS (born [in] 1979 of [address omitted]) persons whom the Court has reasonable cause to believe have the child [X].
Information to be provided to the Registry Manager pursuant to Order 3 includes the payee, financial institution, account name and number of any payment by the Department to or in relation to the child or the said MS RHODES and MR AMIS or any person with whom the records suggest the child or the said MS RHODES and MR AMIS may be.
These Orders will remain in force until 1 January 2014.
The Registry Manager is permitted to disclose information provided pursuant to these Orders to:
(i)The Registry Manager of the Newcastle Registry of the Court;
(ii)Any officer of the Federal Magistrates Court of Australia or the Family Court of Australia for the purpose of that officer’s responsibilities or duties;
(iii)The solicitors for the Applicant MS MENDOZA;
(iv)The Marshall or Deputy Marshall of the Court; and
(v)All officers of the Australian Federal Police and the police forces of all States and Territories being the persons to whom a recovery order issued in these proceedings on 28 December 2012 is addressed.
IT IS NOTED that publication of this judgment under the pseudonym as 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 of [X] born [in] 2008 for a location order and a publication order. The Application is being heard ex parte.
The Court has previously made a Recovery Order on the application of the grandmother (Mendoza & Rhodes & Anor[1]). The Recovery Order was made on 28 December 2012.
[1] [2012] FMCAfam 1448
This Application arises because the Applicant claims that the Respondents have absconded with the child and the Police have been unable to execute the Recovery Order as they do not know the parties’ whereabouts.
Evidence and Submissions
The Applicant relies on an affidavit affirmed today in which she deposes that the Respondents became aware of the issue of the Recovery Order and have “run” with the child. The Applicant believes that the father has relatives who would assist him. She also deposes that the father has several sets of number plates which he could attach to his car in an effort to avoid detection.
Both of the Respondents have mental health issues and substance abuse issues.
The Applicant gave oral evidence over the telephone in which she affirmed the truth of her affidavit evidence. She fears for the child’s welfare as he is an asthmatic and has been without medication since he left her care on 26 December.
She also told the Court that both of the parents receive payments from Centrelink and she believes that they both have accounts with the Commonwealth Bank.
The law to be Applied in respect of Location Orders
Section 67K of the Family Law Act 1975 provides that a location order may be applied for by:
a)a person with whom the child is to live under a parenting order;
b)a person with whom the child is to spend time under a parenting order;
c)a person with whom a person is to communicate under a parenting order; or
(ca) a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child.
Section 67L of the Act provides that in deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
A court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC.
Section 67M allows a court to make a location order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location.
Section 67N allows the Court to make a Commonwealth Information Order if it is satisfied that the child’s location is likely to be contained in, or come into, the records of a Department or Commonwealth instrumentality.
Section 67P allows the Registry Manager of the court to disclose the information obtained under a location order to:
d)the Registry Manager of another court;
e)an officer of the court;
f)a process-server;
g)the applicant’s legal adviser;
h)where there is a recovery order under s.67Q in force, to the person to whom the authorisation or direction is addressed, usually the State or Federal Police.
Conclusions
I am satisfied that the Applicant has standing to apply for the location order, as she is not only the child’s grandmother but the person in whose favour the parenting orders were made on 12 March 2012.
I am satisfied that it is in the best interests of the child [X] for the location order to be made. There is evidence of concern about the child’s welfare and the Court must give weight to the primary consideration set out in s.60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In this case, neglect of the child’s health is the primary concern.
I am satisfied that a location order should issue directed to the Commonwealth Bank of Australia. I am also satisfied that a Commonwealth information order should issue, directed to Centrelink and Medicare. There are special circumstances because of which the Commonwealth information order should be made forthwith (s.67N(3)).
I am also satisfied that the information obtained should be disclosed to the following:
i)the Registry Manager of the Newcastle Registry of the Federal Magistrates Court;
j)any officer of the Federal Magistrates Court or the Family Court of Australia for the purpose of that officer’s responsibilities or duties;
k)the Applicant’s legal adviser; and
l)the Marshall or Deputy Marshall of the Court and all officers of the Australian Federal Police and of the police forces of all States and Territories.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 9 January 2013
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