Mills and Allen and Ors

[2016] FamCA 915

FAMILY COURT OF AUSTRALIA

MILLS & ALLEN AND ORS [2016] FamCA 915

FAMILY LAW – CHILDREN – Parenting – Where recovery order application by mother – Where application granted in respect of recovery order – Where final parenting orders previously made by consent – where interim parenting orders made for sole parental responsibility to mother and child to live with mother and restraint from removing the child from the mother’s day-to-day care or seeking to remove the child from any school attended by him – Where notice of discontinuance filed by First Respondent and Third Respondent – Where Second Respondent not engage in proceedings – Where interim orders confirmed as final orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Mills

FIRST RESPONDENT: Ms Allen

SECOND RESPONDENT: Mr A Allen

THIRD RESPONDENT: Mr B Allen

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 2962 of 2016

DATE DELIVERED: 10 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 10 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Shedden of Shedden & Associates

FIRST RESPONDENT: Self-represented litigant

SECOND RESPONDENT: Self-represented litigant

THIRD RESPONDENT: Self-represented litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

1. The Applicant mother have sole parental responsibility for the child C born … 2002.

2. The said child live with the Applicant mother.

3. The First Respondent, Ms Allen, the Second Respondent, Mr A Allen, and the Third Respondent, Mr B Allen, be restrained from removing the child from the mother’s day-to-day care or seeking to remove the child from any school attended by him.

4. All outstanding applications and responses before the court be dismissed.

5. The matter be removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mills & Allen and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2962 of 2016

Ms Mills

Applicant

And

Ms Allen

First Respondent

Mr A Allen

Second Respondent

Mr B Allen

Third Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to the child C born in 2002.

2. Final order as between the child’s mother and father were made by consent on 19 September 2002 that relevantly provided for the mother to have sole parental responsibility for the child and for the child to live with the mother and the father to have time with the child “as agreed”.

3. Proceedings came before the Court in circumstances whereby the child had been removed from his then school by his older sister Ms Allen, who is the first respondent to the present proceedings.  The other respondents are the child’s older brother Mr A Allen (who has filed no documents in response) and the child’s father Mr B Allen.

4. On 18 July 2016, certain interim orders including a recovery order for the return of the child to the mother, were made that provided inter alia, that pending further order:

   (1)the child live with the applicant mother,

   (2)that the applicant mother have sole parental responsibility, and

   (3)that the first and third respondents to be restrained pending further order from removing the child from the mother’s day to day care or seeking to remove the child from his school.

5. Subsequent to those orders, the matter was before the Court on 9 August 2016 where certain further orders were made by consent. There was no appearance by the second respondent brother.

6. The matter adjourned to 2 September 2016 on which date there was no appearance by the brother or father. The matter was adjourned to today’s date for further case management with all respondents ordered to appear in person on the adjourned date. It was ordered and noted:

   (4)In the event of there being no appearance by or on behalf of the First, Second and Third Respondents or any of them any application or response filed by them will be struck out and dismissed.

   IT IS NOTED THAT:

   A.There was no appearance today by the Second and Third Respondents and that the First Respondent will consider her position during the period of the adjournment and may well file a Notice of Discontinuance.

7. During the period of the adjournment until today, the first respondent Ms Allen filed a Notice of Discontinuance on 26 September 2016, as did the third respondent, Mr B Allen on the same day.  No document has ever been filed by the second named respondent in the proceedings Mr A Allen.

8. The orders that remain in place at the moment reflect final orders made in proceedings in 2002 and bearing in mind that there are now no respondents to the present proceedings, it’s appropriate to confirm that those orders are to remain as final orders. 

9. Orders will be made accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 October 2016.

Associate:

Date:  2 November 2016