Mooney and Mooney

[2008] FamCA 17

FAMILY COURT OF AUSTRALIA

MOONEY & MOONEY [2008] FamCA 17

FAMILY LAW – ENFORCEMENT – Application by wife for Recovery Order.  In the given circumstances, order made for the husband to deliver the child to the Melbourne Registry of the Family Court.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mrs Mooney

RESPONDENT: Mr Mooney

FILE NUMBER: MLC 13880 of 2007

DATE DELIVERED: 3 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband do deliver the child J (the child) born … March 2002 to the Child Minding Section of the Family Court of Australia (Melbourne Registry) at 9.30am on 7 January 2008.

2. That the Initiating Application of the wife filed on 31 December 2007 be adjourned to 10.00 am on 7 January 2008 for hearing in the Judicial Duty List.

3. That the wife do forthwith cause to be served upon the husband a sealed copy of the Orders made this day.

4. That the Reasons for Judgment be transcribed and placed on the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgement of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Mooney & Mooney.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13880  of 2007

Mrs Mooney

Applicant

And

Mr Mooney

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List, and is comprised of an Initiating Application brought by the wife and filed on 31 December 2007.  Times have been abridged for the matter to be returnable this day.  The wife seeks a Recovery Order of the child J, who was born in March 2002.  The child is nearly six years of age.

2. I have read the initiating application, together with the affidavit sworn by the wife and filed in support.  A short background to the matter is as follows.  The wife was born in January 1969, and is engaged in home duties.  She resides at N in the state of Victoria.  She has, I understand from her submissions this day, repartnered.

3. The respondent to the Application, the husband, lives at I in Queensland.  He was born in May 1955 and is by occupation engaged in property development.  The parties commenced to live together in about October 2000, and married in June 2001.

4. Following unhappy differences between them, they separated on 10 January 2005.  There are two children of their union, the oldest child being J, to whom I have already referred.  Their youngest child, S, was born in March 2004.

5. There have been previous orders made in this court on 10 January 2005, which provide that the said children reside with the wife in Victoria.  There are other specific orders concerning contact, as it was then styled, between the children and their father, further orders facilitating contact changeover and general orders concerning the children's welfare and in particular, an order by consent that the wife have the “sole responsibility” for the day-to-day care, welfare and development of the children when they were residing with her.

6. As I understand it, although it is not specifically clear from the orders to which I have earlier referred, the arrangements between the parties for contact following December 2007, are not clearly defined, but notwithstanding, it was agreed between the parties that the husband would spend time with J from 22 December to 29 December 2007.  The wife deposed that the husband provided a “Virgin Blue” booking reference quote for the return flight on Saturday 29 December, specifying the flight number and departure of the flight from the Gold Coast and its arrival in Melbourne.

7. Cautiously, it seems to me, the wife sought to verify the booking by using the Virgin Blue website on the internet, and as a result of inquiries made by her, was advised that the booking reference number quoted was for a previous flight in October 2007.  It is clear that the husband gave her false information or put more directly, deceived her.

8. The wife deposed that on 29 December, 2007 she telephoned the husband to verify and confirm the flight details for J.  The husband informed her that J was not being returned "today", and when asked when J would be returned to her he blandly replied, "I will get back to you".  His disregard for that earlier agreement was palpable.

9. I was informed by the wife in the course of her submissions, that she has since attempted to telephone the husband, but his telephone goes on to its answering device.  She informed me from the Bar table that she has “left messages” on his voicemail, that she has issued proceedings for the return of J, together with the date of the proceedings this day.  Notwithstanding that, she has had no contact from him.

10. It seems to me inappropriate at this stage in the whole of the circumstances that I order a Recovery Order pursuant to the relevant provisions of the Family Law Act 1975 (as amended). What I propose to do is to require that the husband deliver the child to the Counselling Section of the Family Court of Australia (Melbourne Registry) at 9.30 am on 7 January 2008. It should be made quite clear that should he fail to do so, then it is open for the court on that day to make a Recovery Order in its due form, and further, subject to the discretion of the trial Judge on that day, for the issue of a Warrant for the arrest of the husband for breach of the order. That, of course, presupposes that the wife will be able to serve him with the order, prior to its return date.

11. It is appropriate to act in this way, because the wife has made it clear to me that the husband lives at I in Queensland.  She has provided his mobile number. He is a property developer by occupation, and conducts a company.  He operates his business from home.  The wife also expressed concern that the husband gave to her a false flight booking.  She has every reason to be concerned, by reason of that deception.  I do not treat his conduct lightly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  22 January 2008