Simpson and Caner

[2008] FamCA 237

FAMILY COURT OF AUSTRALIA

SIMPSON & CANER [2008] FamCA 237

FAMILY LAW – PROCEDURAL – Application by father for Recovery Order in circumstances where mother holding the children contrary to earlier orders of the court – Orders made for the mother to hand the children over to the father upon service of sealed copies of the order.

Family Law Act 1975 (Cth)

APPLICANT: Mr Simpson

RESPONDENT: Ms Caner

FILE NUMBER: MLF 1747 of 2006

DATE DELIVERED: 2 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 2 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife do forthwith upon service of this Order deliver or cause to be delivered to the husband the children J born … April 2000 and K born … October 2004.

2. That the husband to cause to be forthwith served upon the wife a sealed copy of the Order made this day together with sealed copies of the Application in a Case filed on 2 April 2008 and the Affidavit filed in support of that Application also filed on 2 April 2008.

3. That the said Application of the husband filed on 2 April 2008 be otherwise dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1747 of 2006

Mr Simpson

Applicant

And

Ms Caner

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List and comprises an Application brought by the father filed on 2 April 2008. By that Application, the father seeks an order in the usual terms pursuant to the provisions of section 67Q of the Family Law Act (1975) (as amended) requesting all officers of the Australian Federal Police and all State and Territory police officers to find and recover the children, J, who was born in April 2000, and K, who was born in October 2004.  His Application is supported by a short and well-prepared affidavit.

2. I have read that affidavit and it appears to me from the contents of his affidavit, and together with the general submissions made by the father this day, that the mother has rather thumbed her nose at the orders made by Young J on 3 November 2006.  The history to the matter is that the parties separated on 6 June 2005, at which time J was living with the father and continues to do so to this day.  K remained with the mother.  The father initiated proceedings in June 2006 seeking that J continues to reside with him and for orders that he spend time with K.  The proceedings came before Young J on 3 November 2006.  Orders were made by his Honour that J remain living with his father and that he spend time with K.  A mirror image to those orders was made so that the two children were essentially together.

3. The father complains that J went to stay at the mother's house on 25 March 2008 for the first week of the school holidays, pursuant to the orders of Young J.  He was supposed to meet the mother on 1 April 2008, to collect J and K for his share of the school holidays and return K to the mother on Sunday 6 April 2008.  She failed to cooperate.  The father said he contacted the Police to ask them to contact the mother and arrange to meet so that he could spend time with the children pursuant to the orders for holiday contact.  Despite the presence of the uniform policeman, the mother resisted handing them over to him.

4. The father complained that this is not the first time the mother had breached orders of this Court by not delivering K to him and that she has failed to offer any reasonable excuse.  Apparently she has “threatened” that she intends to move further away, possibly interstate so that the father is concerned that he will lose contact with K if that were to occur.  He deposed that in his view it would be detrimental to J’s wellbeing should the child not be returned to him.  Whilst that is a matter for the court, it appears to me that this cycle has been going on for years.  J has lived with his father and it must be quite stressful for the boy now to be in a situation where his mother refuses to return him to the father without due process of the court.  Self help is to be condemned. 

5. I do not propose to make a Recovery Order.  What I do propose to do, however, is order that the mother forthwith, upon service of a sealed copy of my order, cause the two children to be delivered to the father.  I have explained to the father that in the event that the mother does not do that, he will be obliged to return to court.  Whilst he may lose some time in terms of spending time with the children in the school holiday, it would appear to me that upon that event occurring, if it were to occur, a judge of this court may well consider the issue of a warrant for her arrest.  That, however, would be the port of last call.  So in the circumstances, it appears to me appropriate that I should make the order proposed. 

6. It is an order of a Superior Court of Record.  It must be obeyed.  The father will cause a sealed copy of the orders to be served upon the mother.  He has to travel from Melbourne this day, after the orders have been prepared, to regional Victoria to have the documents served upon the mother and the two children delivered to him.  I do not take it lightly when litigants thumb their nose at the authority of the court and act in disobedience to the orders.  It cannot be tolerated.  I have every expectation that the mother will deliver the children to the father in accordance with the orders that were made by Young J on 3 November 2006.  If she does not do that, then substantial and serious penalties may follow.

7. I propose to make the orders as outlined.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  11 April 2008