Ruslip and Bannon

[2007] FamCA 730

FAMILY COURT OF AUSTRALIA

RUSLIP & BANNON [2007] FamCA 730

FAMILY LAW - CHILDREN – Ex parte application – Recovery order

Family Law Act 1975 (Cth)

APPLICANT: MR RUSLIP

RESPONDENT: MS BANNON

FILE NUMBER: MLF 1618 of 2006

DATE DELIVERED: 9 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 9 July, 2007

REPRESENTATION

THE APPLICANT: The father in person

THE RESPONDENT:   The mother

Orders

(1)That all times be abridged to enable the application filed by the Father to be heard this day, ex parte.

(2)That until further order, the children B born in January 1993, D born in January 1996 and J born in November 2002 live with the Father.

(3)That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the child J born in November 2002 and to deliver the said child to the father forthwith, he being the person entitled to have the said child live with him pursuant to the order made this day.

(4)That until further order, all orders providing for the mother to have contact with any of the children, or to spend time with any of the children, be suspended.

(5)That if the mother takes or attempts to retake possession of B born in January 1993, D born in January 1996 and J born in November 2002 after execution of the recovery order, she may be arrested without warrant.

(6)That as soon as practicable the father serve the mother with the following documents :

(a)       form 2 application filed this day;
  (b)      affidavit of the father sworn and filed this day;
  (c)      sealed copy of this order.

(7)That the form 2 application filed this day be otherwise adjourned to 9:45 am on 1 August 2007, in the Registrar’s Duty List and the listing before a Registrar on that day be vacated.

(8)That as soon as practicable the father serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

(9)That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(10) That the reasons for judgment this day be transcribed and that copies be made available to the parties

(11) That the preparation of these orders be expedited forthwith.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1618  of 2006

MR RUSLIP

Applicant

And

MS BANNON

Respondent

REASONS FOR JUDGMENT

1. This matter is brought on as a matter of urgency.  The applicant is the father, Mr Ruslip.  With Ms Bannon the father has a son, D, born in January 1996. 

2. Two of D’s stepbrothers also live with the father, being B, born in January 1993, and J, born in November 2002.  They are Ms Bannon’s sons and have been living with the father for quite some time, with the support of the Department of Human Services.   The mother has another child, S, who is currently in foster care.  The existing proceedings in this Court relate only to the child B. 

3. The mother was sentenced to ten months imprisonment in 2006.  The proceedings relating to B were adjourned to 1 August, 2007, it being anticipated she would have completed her sentence by then.  The father's evidence is that she was released on 25 June. 

4. On 29 June the mother attended at the father’s home.  She stayed at his home for some four days.  On 3 July, he went out for a short time to find out what time the children were to meet with their sibling, S.  When the father returned, he discovered that the mother had taken J, his friend's car, the number plates off his car and his mobile phone.  He reported the matter to police.  Inquiries have not established the mother's whereabouts or the whereabouts of J.  The father has significant concerns, given the mother’s history of drug use and offences of dishonesty;  he fears J may be in danger.

5. After first taking the child, the mother probably returned to the father’s home while he was out, as some of J's clothes were taken.  That is not consistent with an intention to return J to his home.  The father is concerned that the mother may have returned to live with her ex‑partner, Mr T, a violent man. 

6. I am satisfied the best interests of J demand he be returned to the father’s care.  If the mother wishes to make an application he live with her, she can do so, setting out with specificity her proposals.  But on the evidence before me, orders should provide for him and his brothers to live with the father until further order and all contact with the mother should be suspended until the Court can properly assess the father’s allegations and the risks, if any, which the children may face in her care.

7. The parties had anticipated a hearing on 1 August, 2007.  I will adjourn this application to that date, hoping that the recovery order will have been executed by then.  The Senior Registrar can then assess what needs to be done, taking into account any application then made by the mother.

I certify  that the preceding
7 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as RUSLIP & BANNON