Sheffield and Tomlin (No.2)

[2017] FCCA 183

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEFFIELD & TOMLIN (No.2) [2017] FCCA 183

Catchwords:
FAMILY LAW – Interim parenting – mother breached orders made the day before – recovery order issued.

Legislation:

Family Law Act 1975, s.67U

Applicant: MR SHEFFIELD

Respondent: MS TOMLIN

File Number: MLC 2400 of 2015

Judgment of: Judge Harland

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Melbourne

Delivered on: 1 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Szabo

Solicitors for the Applicant: Peter Szabo Family Lawyers

The Respondent: No appearance

Counsel for the Independent Children's Lawyer: Ms Kourtis

Solicitors for the Independent Children's Lawyer: Mckean Park Lawyers

ORDERS

1. The proceedings are adjourned to 17 February 2017 at 9.00am for a Mention Hearing.

2. The orders made 31 January 2017 be suspended.

3. Until further order, the children X born (omitted) 2012, Y born (omitted) 2007 and Z born (omitted) 2004 live with the father.

4. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the children X born (omitted) 2012 and Z born (omitted) 2004  (“the children”) and to deliver the children to Mr Sheffield at (omitted) Victoria in the State of Victoria, or such other place as the and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the child/ren may be found.

5. As soon as practicable the Registry Manager serve a sealed copy of these orders upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

6. The father immediately notify the court on [phone] upon the children being returned to their care so that the matter may be listed for hearing at short notice.

IT IS NOTED that publication of this judgment under the pseudonym Sheffield & Tomlin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2400 of 2015

MR SHEFFIELD

Applicant

And

MS TOMLIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was before me yesterday for an interim hearing. I refer to the reasons I delivered yesterday [2017] FCCA 182 and will not repeat them. I indicated yesterday that if the orders were not complied with for the children to be delivered to the father, a recovery order would issue. Mr Szabo, the solicitor for the father and Ms Kourtis, the Independent Children's Lawyer appeared before me in Court today seeking that issue of recovery order. The Independent Children's Lawyer has read out a lengthy email from the mother which indicates that she has no intention of complying with Court orders and disagrees with the decision. The Independent Children's Lawyer has also advised that contrary to the expectations yesterday, in part due to the mother’s submissions that her parents would be supportive of the children spending time at her home, the maternal grandparents have indicated that they are not willing to facilitate time.

3. I will note that the mother is not in attendance today and not on notice, however, it was made clear yesterday that an approach to chambers could be made to seek the recovery order in the absence of compliance with the orders.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  3 February 2017