PERREIRA & CHANDRA

[2015] FamCA 337

FAMILY COURT OF AUSTRALIA

PERREIRA & CHANDRA [2015] FamCA 337

FAMILY LAW – PRACTICE & PROCEDURE – WARRANT – where the mother has retained the children – where there are orders for the children to spend time with the father – where the mother has failed to participate in these proceedings – where a warrant issues.

Family Law Act 1975 (Cth) ss 60CC, 65M, 65N, 65NA , 65Q

APPLICANT: Mr Perreira

RESPONDENT: Ms Chandra

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: BRC 10610 of 2011

DATE DELIVERED: 5 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 5 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.J. Wilson

SOLICITOR FOR THE APPLICANT: Harris Sushames Lawyers

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bint, C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to s 65Q(2) of the Family Law Act 1975 (Cth) a warrant shall issue authorising the Marshal and all officers of the Australian Federal Police and the State and Territory police forces to arrest, and they are to arrest, Ms Chandra, a female, born … 1987 and bring her before this Court on the first day on which the Court next sits after her arrest or as soon as practicable after that date.

2. The mother forthwith file and serve a Notice of Address for Service.

3. The mother forthwith advise and keep the Independent Children’s Lawyer informed of:

   (a)the residential address of the children B, born … 2009, C, born … 2010, and D, born … 2010;

   (b)the residential telephone number of the children;  and

   (c)the name, address and telephone number of the day care centre, pre-school or school of the children.

4. The Independent Children’s Lawyer be restrained from releasing any details as to the children’s residence or whereabouts to the father.

5. The Order made on 5 June 2014 as amended on 21 August 2014 shall be amended to provide that the children’s time with the father shall occur as follows:

   (a)until further order:  supervised at Relationships Australia, Suburb E;

   (b)on Thursday 28 May 2015 for one hour with the mother to deliver the children to the Centre at 2.30 pm and the father to arrive at 2.45 pm;  and

   (c)commencing Thursday 11 June 2015 and each alternate week thereafter: for a period of two (2) hours at times as directed by the Centre.

6. The Independent Children’s Lawyer has liberty to apply to have the matter relisted before the Honourable Justice Hogan on the giving of no less than five (5) hours notice in writing to each of the parties.

7. The Independent Children’s Lawyer shall provide the mother with a copy of this Order forthwith.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

A.Any further Application filed by the Independent Children’s Lawyer is to be listed before the Honourable Justice Hogan at a time and date to be notified.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perreira & Chandra 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: BRC 10610 of 2011

Mr Perreira

Applicant

And

Ms Chandra

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. There is in existence an Order that provides for the children to spend supervised time with the father.  The Order was originally made on 5 June 2014 and has been amended by additional Order made by the acting Principal Registrar on 21 August 2014.  Orders made by the acting Principal Registrar also, in essence, amended the earlier Order to reflect the reality of the cessation of the operation of the Contact Centre particularised in the Order made 5 June 2014.  The acting Principal Registrar’s Order also contained terms that required the parties to attend upon the substituted Contact Centre and participate in an intake process so as to facilitate the children spending supervised time with the father. 

2. A perusal of even only the reports of Dr F and Ms G, the Family Report writer, make it clear that this case is attended by significant factual disputes.  In fact, one could almost conclude that there is very little agreed by the parties in their respective accounts to those persons of events alleged to have occurred during the course of their relationship. 

3. I note, that the mother participated in an interview with Dr F on 11 December 2014 and has previously participated in various procedural hearings conducted by Registrars of this Court. 

4. The contents of Exhibit “1” – namely, email communication from the Independent Children's Lawyer to the mother dated 4 May 2015 - make it clear that the mother has been afforded notice of the prospect that her non-attendance today before me may lead to the issue of a warrant.  I am satisfied, therefore, that the mother has been afforded appropriate procedural fairness and has been given appropriate notice of today’s hearing and the possible consequences for her of non-attendance. 

5. As I have said, there are existing parenting orders in place, which are intended to provide the children - currently aged five and a half and twins aged just over four and a half years of age - with the opportunity to spend time with the father: no doubt consistent with one of the primary considerations set out in s 60CC of the Act. 

6. The fact of such an order creates obligations as set out in s 65NA of the Family Law Act 1975 (Cth), which provides that a person must not hinder or prevent a person and the child, or children relevantly here, from communicating with each other in accordance with an order. In a similar way, s 65N provides that a person must not hinder or prevent a person and a child from spending time together in accordance with the order.

7. The father’s evidence establishes that the children have not spent time with him at a Contact Centre.  It also establishes that he has attended the necessary processes to ensure that that takes place. 

8. There is before the Court an Application for Contravention filed by the father on 16 February 2015. Consequently, regard may be had to the terms of s 65Q of the Act, which applies if: a parenting order provides that a child is to spend time with a person, and a Court is satisfied on application by the person with whom a child is to spend time that there are reasonable grounds for believing that (in this case), the mother has contravened either s 65M, s 65N or s 65NA in relation to the order; and there is an Application before the Court to be dealt with under Division 13A for the alleged contravention; and the Court is satisfied that the issue of a warrant is necessary to ensure that the mother will attend before a Court to be dealt with under Division 13A for the alleged contravention.

9. If satisfied of those matters - as outlined in subsection (1) of 65Q - the Court may, pursuant to s 65Q(2) of the Act, issue a warrant authorising a person to whom it is addressed to arrest the mother. It is clear from the provisions contained in s 65Q(3) of the Act that the warrant, if issued, will cease to be in force six months after its issue.

10. The evidence is such that I find, as I have said, that there is in existence a parenting order which provides that the children are to spend time with the father: namely, the Order made in June 2014 as amended by the Order of the acting Principal Registrar made 21 August 2014.  I am also satisfied that there are reasonable grounds for believing that the mother has contravened s 65N of the Act in that she has not delivered the children to the Contact Centre or made them available for the purpose of ensuring that they are afforded the opportunity to spend time with the father there and that she has continued to do so despite information conveyed by her to Ms G during interview on 28 March 2014. 

11. There is clearly an Application before the Court that the mother be dealt with under Division 13A of the Act for the alleged contravention of the Order.  I find that it is appropriate to issue a warrant for the arrest of the mother for the purpose of bringing her before the Court to answer the charge of contravention contained within the Application for Contravention filed 16 February 2015. 

12. It is also, I consider, appropriate - given that the mother participated to some extent at least in the proceedings before the Court, by participating in the December 2014 interview with Dr F - to make additional orders in terms of the proposed Minute of Order provided by Ms Bint, the Independent Children's Lawyer. 

13. I should explain to the parties that the intention of that order is to take into account the possibility that, upon Ms Bint forwarding to the mother by email a copy of the Order made today, the mother informs Ms Bint that she wishes to appear before the Court.  In that way, the matter can be brought before me as soon as practicable, once Ms Bint notifies my Associate:  I can then return to Court and deal with the matter further. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 May 2015.

Associate:     

Date:    5 May 2015