Richard and Briar

[2008] FamCA 82

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR [2008] FamCA 82

FAMILY LAW – CHILDREN – Location order

Family Law Act 1975

Applicant: Mr Richard

Respondent: Ms Briar

File Number: MLF 2377 of 2006

Date Delivered: 19 February 2008

Place Delivered: Melbourne

Place Heard: Melbourne

Judgment of: Carter J

Hearing Date: 18 February 2008

Representation

Counsel for the Applicant: Mr Mawson SC

Solicitor for the Applicant: Forte Family Lawyers

Counsel for the Respondent: No appearance

Orders

1. That all times be abridged to allow the matter to proceed without notice to the respondent wife.

2. Pursuant to s 67J(1)(a) of the Family Law Act 1975 the Court make a Location Order requiring the following persons or entities to provide the Registry Manager of this Court with information that the person or entity has or obtains in relation to the location of the child … born on … January 2002 (“the child”):

   (a)      Mr S
              (b)      Ms J;
              (c)      Mr L;
              (d)      Ms H;
              (e)      the Department of Education in Victoria;  and
              (f)       the Department of Eduction in Tasmania.

1. That copies of the Location Orders be served by the husband’s solicitors as soon as practicable upon the persons or entities in par (2) hereof.

2. It is requested that the Australian Federal Police provide assistance to serve the Location Orders on the recipients, if necessary.

3. That as soon as practicable the solicitor for the husband serve a sealed copy of this order upon the AFP Operations Co-ordination Centre, GPO Box 401, Canberra, ACT 2601 and it is requested that the Australian Federal Police give force and effect to this order.

4. That a copy of this order be faxed immediately to the AFP Operations Co-Ordination Centre by the Melbourne Registry of the Family Court of Australia.

5. Pursuant to s 67P(1)(d) of the Family Law Act 1975 leave be granted to disclose the information provided to the Registrar of the Family Court of Australia at Melbourne to the solicitors for the husband, Forte Family Lawyers, and to a process server engaged by them to effect service of the documents on the mother.

6. That upon receipt of the information as to the whereabouts of the said child and/or the said mother Forte Family Lawyers be restrained from divulging such information to the husband.

7. That the further hearing of the Amended Application filed 15 February 2008 be adjourned to 28 February 2008 in the Judicial Duty List.

8. That the husband have liberty to renew his application in respect of par (9)(e), par 10, par 11 and par 17 of the Amended Application filed 15 February 2008 as he may be advised.

9. That the preparation of this order be expedited forthwith.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

Mr Richard

Applicant

And

Ms Briar

Respondent

REASONS FOR JUDGMENT

1. These are brief Reasons for Orders made 18 February 2008.

2. On 5 February 2008 Senior Registrar FitzGibbon made a number of orders including a Recovery Order in respect of a child born in January 2002 (“the child”) requiring the child to be delivered to the husband.

3. The husband’s Form 2 Application filed 4 February 2008 was otherwise adjourned to 18 February 2008 and it came on before me in the Judicial Duty List on 18 February 2008. The Form 2 Application had been amended on 15 February 2008 and a further affidavit sworn by the husband had also been filed.  Considerable attempts had been made to locate the child and to give effect to the orders of 5 February 2008.  Those attempts had not been successful and the husband sought additional orders to assist in the recovery process.

4. On being satisfied that it was in the child’s best interests to do so I made several expedited Location Orders, inter alia, in relation to a number of friends and family members of the wife.  The evidence, although untested, satisfied me that the relationships of these people with the wife were such that they would be likely to have information which could assist in locating the child.

5. The husband was not aware of the precise addresses of these individuals although he did have some information.  I was informed and accept that it was understood that the Australian Federal Police would be able to be assisted in their enquiries if the Location Orders were issued, and that the whereabouts of these individuals was likely to be able to be ascertained by the Australian Federal Police.

6. When Location Orders are made the Registry normally provides an explanatory letter to the individual or entity required to give information, together with two envelopes addressed to the Court.  This is because the information is extremely confidential.  There are also a statutory prohibition on the disclosure of information to the Court under a Location Order with certain restrictions.

7. In the circumstances of this case, I have required the husband’s solicitors to attend to service of the Location Orders (inter alia).  More commonly the Registry attends to this.  Accordingly, at my direction my Associate prepared the relevant letters in respect of each Information Provider.

8. I declined at this stage to make orders directed to Miss Briar born August 1991.  Miss Briar is a child of the wife from a previous relationship.  She is not yet 17 and while she may well have information her involvement (or further involvement) in these proceedings should be avoided, if possible.  I also declined to grant a Publication Order at this stage.  It was premature in my view.  These matters may be pursued at the next hearing, if necessary.

9. I also declined to grant a Commonwealth Information Order.  The application had not been served as required and could not be dealt with on an ex parte basis.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:     

Date:              19 February 2008