Richard and Briar (No. 2)

[2008] FamCA 223

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR (NO. 2) [2008] FamCA 223

FAMILY LAW – CHILDREN – Recovery orders – Publication orders

APPLICANT: MR RICHARD

RESPONDENT: MS BRIAR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2377 of 2006

DATE DELIVERED: 28 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I.F. Mawson SC

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

COUNSEL SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

1. Pursuant to s 67N of the Family Law Act 1975 the Business Manager of Centrelink provide to the Registry Manager of the Family Court of Australia at Melbourne information about the location of the child … born … January 2002 or the wife … born … November 1966 that is contained or comes into the records of that government instrumentality.

2. Pursuant to s 67P(1)(d) of the Family Law Act 1975 leave shall be granted to the Registry Manager to disclose any information received to the solicitors for the husband, Forte Family Lawyers and to a process server engaged by them to effect service of documents on the wife, provided that no such information shall be provided to the husband.

3. That pursuant to s 121 of the Family Law Act 1975 there shall be leave to publish the following to assist in the location and recovery of the child:

   (a)       Date of recovery order;

   (b)       The name and date of birth of the child;

   (c)       The name and date of birth of the wife;

   (d)       A description of the wife and the child;

   (e)       A photograph of each of the wife and of the child;

   (f)       Details of when the wife disappeared and where and when the child was last seen; and

   (g)       Any other fact or circumstance that may assist the Marshal of the Family Court of Australia or any officers of the Australian Federal Police to recover the child.

4. That the husband’s solicitor shall file a subpoena this day addressed to Miss Briar born … August 1991, but such subpoena shall then be forwarded to Mr Tim Mulvany of TJ Mulvany & Co, pro bono solicitor, who shall give independent advice to Miss Briar, and such subpoena shall be returnable before me on 29 February 2008 at 11.00am and Miss Briar’s attendance tomorrow shall be excused provided that Mr Mulvany attends on her behalf.

5. The husband shall have liberty to apply to the court.

6. That all existing applications shall be adjourned before me on 29 February 2008 at 11.00am.

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: MLF 2377 of 2006

MR RICHARD

Applicant

And

MS BRIAR

Respondent

REASONS FOR JUDGMENT

1. The child subject of this application is six.  His parents separated in 2006.  They have been litigating about him in this court since soon after that.  Interim parenting orders were made on 6 December 2006.  Until recently, his father was spending time with the child pursuant to those orders each alternate weekend from Friday to Monday, overnight one night in the other week, for half of school holidays, and on special occasions.  The case was in the pool of cases awaiting a hearing date. 

2. On 1 February this year the father went to collect the child from his mother's home.  He was not there.  Unfolding events suggested that the mother had moved out of her home.  Bizarrely, one pet was left behind.  Even more bizarrely, her 16-year‑old daughter from another relationship, Miss Briar, was also left behind, but with friends.  The material suggests that she, Miss Briar, is pretty distressed about things at this stage. 

3. Attempts to locate the child and the child’s mother have so far, troublingly, drawn a blank.  The father started recovery proceedings on 4 February 2008.  A recovery order was issued.  The Australian Federal Police were unable to execute it.  Various location and information orders were made, but revealed nothing.  Subpoenas were served.  They turned up some telephone numbers from government agencies, but so far they have not helped the father's solicitors further. 

4. Location orders were directed to four individuals who, it was thought, were likely to have information as to the mother's location.  They are Mr S, Ms J, Mr L and Ms H.  Mr S, Ms J and Ms H have appeared today under subpoena.  Mr L has also appeared, as has another gentleman, Mr T. 

5. Mr Mawson, senior counsel for the father, had a number of applications today, directed towards locating the child.  First, he sought the release of subpoenaed material.  I made that order and he had the opportunity to look at that material.  He sought leave to discuss the telephone numbers referred to above, directly with the child's father.  It transpired that those numbers were from subpoenaed material, not from location orders, as he had thought.  Accordingly they were not caught by para 8 of the Orders made by Carter J on 18 February 2008 and so there was no difficulty with the solicitor discussing them with her client.

6. There had been an issue about questioning the four people who were in court.  In fact, Mr Mawson SC and his instructing solicitor spoke with those people.  He has recorded on transcript that he is utterly satisfied that they understood the gravity of the situation, were genuine and forthright in their efforts to assist, but that they had no information that was useful for these purposes. 

7. The next issue raised related to a publication order.  The issue was adjourned previously by Carter J, as premature at that time.  It does now warrant revisiting, in the absence of the other attempts to locate the child having borne fruit. 

8. Section 121 of the Family Law Act precludes publication of details identifying a party to or a child in proceedings.  It deliberately preserves privacy, given the harm that can result from voyeuristic eyes in relation to personal family matters.  But that prohibition does not apply if the court directs publication.  Cases where a child urgently needs to be found make classic exceptions to the prohibition.  This is clearly such a case. 

9. When the matter came before Carter J ten days ago, it was reasonable to defer publication.  There were various irons in the fire as a result of her Honour's orders.  Those irons have now gone cold.  In the worrying context of not being able to locate this child and his mother for a month, publication to alert the public to be on the look-out is a very reasonable step. 

10. That leaves one other issue.  It relates to 16‑year‑old Miss Briar, the mother's daughter from a previous relationship.  It is a vexing issue as to whether the child should be questioned.  Again very reasonably, Carter J deferred that question.  Again, without other good leads, the child’s disappearance is, in my view, sufficiently worrying that his best interests clearly dictate that I facilitate all that I can to locate him.   

11. Although Miss Briar is not a child of these proceedings, I cannot be casual about her best interests.  The material suggests that she is upset.  It suggests that she may be upset because she carries the secret of her mother's whereabouts, or, not surprisingly, she may be upset because she does not know the whereabouts of her mother and her little half‑brother. 

12. In my view, obtaining information for the court from Miss Briar must be done as delicately and safely for her as can be arranged, and of course according to law.  That is where Mr Mulvany, the solicitor who is now on the telephone, comes into things.

13. I have been asked to order that Miss Briar be interviewed by a Family Consultant and that the Family Consultant convey what the child says, to the court.  That mechanism was arrived at after a very brief discussion between Mr Mawson and I.  It is clearly a preferable course commanding the child to appear in front of me or any other judge to talk in an open courtroom setting.  But as I was considering that order, I became concerned at the prospect of making an order against a 16‑year‑old unrepresented child, and one who does not even have the benefit of a legal guardian at hand at the moment to offer her advice. 

14. Miss Briar is not a party to the proceedings.  The independent children's lawyer does not represent her.  The independent children's lawyer would have a conflict in any event, because her task is to protect the subject child’s interests, and they might well differ from Miss Briar’s interests at this particular point.  So I am grateful to Victoria Legal Aid for contacting Mr Mulvany and particularly grateful to Mr Mulvany for making himself immediately available to step in to assist Miss Briar.  I welcome the opportunity for a discussion with Mr Mulvany and with Mr Mawson as to how to proceed. 

DISCUSSION

1. The orders I will now make area as follows: 

   1.Pursuant to s 67N of the Family Law Act 1975 the Business Manager of Centrelink provide to the Registry Manager of the Family Court of Australia at Melbourne information about the location of the child … born … January 2002 or the wife … born … November 1966 that is contained or comes into the records of that government instrumentality.

   2.Pursuant to s 67P(1)(d) of the Family Law Act 1975 leave shall be granted to the Registry Manager to disclose any information received to the solicitors for the husband, Forte Family Lawyers and to a process server engaged by them to effect service of documents on the wife, provided that no such information shall be provided to the husband.

   3.That pursuant to s 121 of the Family Law Act 1975 there shall be leave to publish the following to assist in the location and recovery of the child:

   (a)    Date of recovery order;

   (b)    The name and date of birth of the child;

   (c)    The name and date of birth of the wife;

   (d)    A description of the wife and the child;

   (e)    A photograph of each of the wife and of the child;

   (f)     Details of when the wife disappeared and where and when the child was last seen; and

   (g)    Any other fact or circumstance that may assist the Marshal of the Family Court of Australia or any officers of the Australian Federal Police to recover the child.

   4.That the husband’s solicitor shall file a subpoena this day addressed to Miss Briar born … August 1991, but such subpoena shall then be forwarded to Mr Tim Mulvany of TJ Mulvany & Co, pro bono solicitor, who shall give independent advice to Miss Briar, and such subpoena shall be returnable before me on 29 February 2008 at 11.00am and Miss Briar’s attendance tomorrow shall be excused provided that Mr Mulvany attends on her behalf.

   5.The husband shall have liberty to apply to the court.

   6.That all existing applications shall be adjourned before me on 29 February 2008 at 11.00am.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  28 February 2008