Noonan and Reardon

[2012] FamCA 703

FAMILY COURT OF AUSTRALIA

NOONAN & REARDON [2012] FamCA 703

FAMILY LAW – CHILDREN - Recovery Order - Where the subject child was taken by force from the Mother one week ago - Where the Father allegedly later told the Mother he would return the child but has failed to do so - Where there is a substantial history of domestic violence - Where the Mother seeks a recovery Order on an ex parte basis - Conditions under which an ex parte Order will be granted

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Noonan

RESPONDENT: Mr Reardon

FILE NUMBER: TVC 899 of 2012

DATE DELIVERED: 21 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Queensland Indigenous Family Violence Service

Orders

1. Leave be granted for the Initiating Application filed 20 August 2012 to proceed on an ex parte basis and for the time for the service of that application to be abridged.

2. Pursuant to s 67Q of the Family Law Act 1975 (Cth), A Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

1. Such persons are authorised and directed to find and recover the child S, born … October 2011 (a female), and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.

   
   
   

2. The child/children are to be delivered to the Applicant Mother, Ms Noonan, at Property G, in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

3. The Recovery order remains in force for a period of six months.

4. Pursuant to s 67Q(f) of the Family Law Act 1975 (Cth), the Father be prohibited form again removing or taking possession of the child unless it is in accordance with Orders of a Court.

Orders Until Further Order

1. The Mother have sole parental responsibility for the major long-term issues relating to the child, including, but not limited to:

   (a)       The child’s education;

   (b)       The child’s religious and cultural upbringing;

   (c)       The child’s name; and

   (d)       The child’s health.

2. Notwithstanding paragraph 7 of these Orders, the Mother be responsible for the day-to-day care, welfare and development of the child whilst living with or spending time with her.

3. The child live with the Mother.

4. The application be adjourned to the Registry and the parties have liberty to apply to obtain a date for an interim hearing of parenting Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 899 of 2012

Ms Noonan

Applicant

And

Mr Reardon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This application concerns the child, S, born in October 2011 (“the child”), who is thus not yet twelve months of age. I note on the material that the child was born some ten weeks premature.

2. The parties commenced living together in about March 2011 and, as noted, the child was born on 10 October 2011, ten weeks premature, and it seems that the parties separated on a final basis on 26 or 27 April of this year.

3. The Mother has filed an Initiating Application yesterday, supported by her affidavit also filed yesterday, and there is a Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence that has been filed today.

4. By her Initiating Application, the Mother seeks interim Orders for this application to proceed on an ex parte basis and for time for service of the application to be abridged. She also seeks Orders pursuant to s 67Q of the Family Law Act 1975 (Cth) for a recovery Order to issue, as well as further Orders under that section to prohibit the Father from removing or taking possession of the child other than in accordance with Court Orders. The Mother also seeks interim Orders for her to have sole parental responsibility for the child and that the child live with her.

5. The circumstances giving rise to this application are that, relevantly and recently, the Father took the child into his possession and care against the will of the Mother and obviously without her consent. The material filed by the Mother records a significant history of family violence and I refer in particular to Annexures A and B to the Mother’s affidavit as well as what the Mother has deposed to in relation to the history of the relationship.

6. Rule 5.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides for applications to be made without notice, as this application has been made. I am satisfied on the material filed by the Applicant Mother that it would not be expedient to simply shorten the time for service of this application and then fix an early date for hearing after service. I do not find that to be more appropriate, and I find that it would be more appropriate for Orders to be now made, albeit without notice to the Father. The Father will have the opportunity to respond to the material and to test the matters upon a future interim hearing date of the application if that is necessary.

7. I am satisfied on the Applicant Mother’s affidavit material, as supplemented by the oral submissions of her legal representative this morning, that there is a significant history of family violence between the parties, and in relation to the other matters referred to in r 5.12(b) of the Rules. I am satisfied that Orders ought be made in terms of the interim Orders that are currently sought, and I now make those Orders.

8. I will further order that the application otherwise be adjourned for the fixing of a further interim hearing date, but I will give the parties liberty to apply in that respect, that is there may not be a necessity for there to be an interim hearing unless it is sought by either the Applicant Mother or the Respondent Father when he has had an opportunity to consider the material.

9. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 August 2012.

Associate:

Date:  22 August 2012