Pickering and Pickering (No 2)

[2009] FamCA 1272

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 2) [2009] FamCA 1272

FAMILY LAW – CHILDREN – recovery order – application by the mother seeking a recovery order – where an order was made for the delivery up of the children – where the father has failed to comply with the order – where the father did not attend the hearing – recovery order issued

Family Law Act 1975 (Cth) s 67U

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 23 DECEMBER 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 23 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NICHOLLS

SOLICITOR FOR THE APPLICANT: NICHOLLS GERVASI LAWYERS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT: NO APPEARANCE

Orders

DURING THE PERIOD OF THE ADJOURNMENT TO 19 JANUARY 2010

1. That the operation of the Orders made on 22 October 2008 be suspended.

2. That the mother spend time with the children H born … June 1995 and S born … December 2000 from Wednesday 23 December 2009 until Tuesday 19 January 2010.

3. That pursuant to Section 67U of the Family Law Act 1975 as amended a Recovery Order do issue authorising the taking possession of the said children H and S and the delivery of such children to the mother MS PICKERING forthwith at … in the State of South Australia or at such other place as the mother and the person effecting recovery agree to be appropriate.

4. That the father be restrained and an injunction is hereby granted restraining the father from removing the said children from the care of the mother or causing the removal of the said children from the care of the mother.

IT IS NOTED that publication of this judgment under the pseudonym Pickering & Pickering is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919  of 2005

MS PICKERING

Applicant

And

MR PICKERING

Respondent

REASONS FOR JUDGMENT

1. I have before me today the adjourned Application in a Case filed by the mother on 5 November 2009.  In that application she seeks a number of orders but the one that she wishes to agitate before the Court today is the Recovery Order that she seeks in relation to the children H born in June 1995 and S born in December 2000.

2. I raised a number of concerns with Mr Nicholls, Counsel for the mother, which he has now addressed to my satisfaction.  The first was a query as to why the matter might not have been referred to the Court’s Magellan Project given the contents of the father’s Affidavit filed on 7 December 2009 and in particular, paragraph 7 thereof.  I am informed though by Mr Nicholls that the allegations that might prompt the appropriate referral to the Magellan Project are historical and have been explored at length in the proceedings which have now been running in this Court since 15 December 2005.  Accepting that intimation from Mr Nicholls, I agree that it is not appropriate to refer this matter to the Magellan Project.  It would also, on that basis, be premature to Order the appointment of an Independent Children’s Lawyer.  These are matters that Strickland J can address in the very near future, namely on 19 January 2010 being the date to which his Honour has adjourned a number of applications in these proceedings.

3. I further accept that it would be premature to order the preparation of a Family Assessment report.  It may or may not be appropriate to ascertain again the children’s views.  I will leave that for determination at a future date by the Judicial Officer who is familiar with the conduct of these proceedings and has been for a long period of time now.

4. I note from Strickland J’s short reasons delivered on 7 December 2009 and I quote:-

   “In relation to the application for a recovery order I have indicated to Mr Nicholls that I am not prepared to make that order yet.  However, I propose to make an order for the delivery up of the children not strictly in accordance with the order of 22/10/08 but as I have explained, because of where the children are there needs to be some lee-way in terms of delivering up of the children and I have given the opportunity to the husband to comment on that. ….”

   His Honour then made an Order (paragraph 3) in these terms:-

   “That the husband deliver up the children [H] born on […] June 1995 and [S] born on […] December 2000 to the wife at 12 noon on Saturday 12 December 2009 at the home of the paternal grandparents at […] for the purposes of complying with paragraph 3(iii) of the order made on 22 October 2008.”

   His Honour then adjourned further consideration of that application for a Recovery Order to 19 January 2010.

5. I indicated to Counsel for the wife some concerns I had about the pursuit of the application for a Recovery Order given the contents of the mother’s Affidavit filed on 5 November 2009.  My particular concern was that she has not seen the children since 29 July 2009 but on the Court’s records, took no action to do anything about that until the filing of her Application on 5 November 2009 nearly some 3 ½ months later.  However, I accept the explanation from the bar table that the mother took a number of practical actions and endeavoured without success to establish the father’s whereabouts prior to the pursuit of further proceedings. Not surprisingly, she was reluctant to engage in further proceedings before the Court given the lengthy and bitter history in this Court to date.

6. An attempt was made to contact the father today by mobile telephone as he certainly attended on the last occasion by telephone before Strickland J on 7 December 2009.  He did not answer his telephone and thus the Court has not had the opportunity to determine from the father why it was that he failed to comply with Strickland J’s Order for delivery up of the children.  However, the simple fact of the matter is that he has not abided the Orders of Strickland J of 7 December 2009 and he has not delivered up the children.

7. On 15 December 2009 the mother filed an Affidavit saying as much.  Further, she deposes in paragraph 4 of her Affidavit that on the date delivery up was meant to be effected, she received a text message from the father stating “as you are aware [H] has told you he wants nothing to do with you again!!!  [H] and [S] have both decided not to see you”.

8. Counsel for the mother has made me aware of the lengthy and protracted proceedings before the Court in which most, if not all, of those issues have already been aired and previously determined.  It would appear, without any shadow of doubt, that the father is acting in open defiance of the Orders of this Court and I therefore propose to grant the mother’s Application for a Recovery Order.  I note that all other matters contained in her Application in a Case filed on 5 November 2009 have been adjourned by Strickland J to 19 January 2010 and will be dealt with by his Honour then.

I certify that the preceding eight (8) paragraphs are a true copy of the ex temopore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  23 December 2009