Simpson and Caner (No. 2)

[2008] FamCA 291

FAMILY COURT OF AUSTRALIA

SIMPSON & CANER (NO. 2) [2008] FamCA 291

FAMILY LAW  -  children  -  application for recovery order  -  whether service of earlier order effected.

Family Law Act 1975 (Cth)

HUSBAND Mr Simpson

WIFE Ms Caner

FILE NUMBER: MLF 1747 of 2006

DATE DELIVERED: 4 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 4 April, 2008

REPRESENTATION

THE HUSBAND: In person

THE WIFE: No appearance

Orders

1. That all times be abridged to allow the matter to proceed ex-parte.

1. 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 children J born … April, 2000 and K born … October, 2004  and deliver the said children to the husband forthwith, he being the person entitled to have the said child J live with him and the said child K to spend time with him, pursuant to orders made in the Family Court of Australia on 3 November, 2006.

1. That the orders made herein on 3 November, 2006 be varied to provide that the husband spend time with K for six full days commencing on the day on which she is delivered to him pursuant to the Recovery Order issued this day and concluding at 4:00 pm. on the sixth day thereafter, and until further order changeovers take place at the N Police Station. 

1. That the orders made herein on 3 November, 2006 otherwise remain in full force and effect.

1. That as soon as practicable the husband 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. 

1. That as soon as practicable the husband serve the wife with the following documents :

   (a)application filed by him this day;

   (b)affidavit sworn by him and filed this day;

   (c)affidavit of service filed this day;  and

   (d)sealed copy of this order.

1. That the Application in a Case filed this day be otherwise dismissed.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That the preparation of these orders be expedited forthwith.

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 is the second time the case has been listed in the court this week.  The matter was before Guest J on 2 April after an application was brought by the father seeking a recovery order to collect his two children J, born in April 2000, and K, born in October 2004. 

1. By way of background, the parties separated in June 2005.  J stayed with the father.  K, who was then very young, remained with the mother.  The father initiated proceedings a year later, in June 2006, in which he sought custody of J and that he have contact with K.  The matter was listed for hearing on 3 November 2006.  On that day, Young J made a number of orders, including orders providing for J to live with the father and K to live with the mother.  Those are noted as interim orders.

1. Since that time, the parties have operated in accordance with those orders.  They provide for K to spend time with the father at various times, including one half of all school term holidays and, in default of agreement, the second half.  K is too young for school herself but the order is structured by reference to school holidays.  The effect of the orders is that the children are together for the whole of the holiday periods.  K was to have been with her father from last Tuesday, 1 April, until the coming Sunday, 6 April.

1. The evidence before Guest J was of the father arranging to meet the mother on 1 April to collect J, who had spent the first half of the holidays with her, and to collect K, who would then come and spend time with him.  He was advised by Police that the mother had advised she was not going to come.  He contacted the Federal Police and was advised to seek a recovery order.  He deposed to previous breaches of the orders by the mother, and to her threats that she would move away, possibly interstate, and that he would lose contact with K.  He came to court to seek a recovery order.  Rather than make that order that day, Guest J ordered that, upon service of his order on the mother, she deliver J and K to the father; and required the father to serve the order on her.  The application was otherwise dismissed. 

1. Inherent in Guest J’s order was a finding that the orders required the mother to send K to the father for the second half of the holiday. 

1. Before me is an affidavit of service, sworn by the father's brother, deposing to his attempt to hand the relevant documents to the mother on 3 April 2008 at the local Magistrates’ Court.  She refused to accept them.  He told her that he intended to serve her with the order of 2 April.  She refused to respond.  He said he was putting the order down, which he did.  She then walked off, leaving the order on the floor.  He then observed a lawyer who was with the mother at the time, pick up the court order and photocopy it.  He observed that lawyer to then hand the original court order to the court clerk and say, "I think someone left this here."  He could not say if the lawyer was acting for the mother on that day.  If she were not, one must wonder on what authority she copied the order.  If she were, and handed the sealed order to the clerk as deposed, that would be highly unprofessional.

1. First, on that evidence, I am satisfied the wife has been served.  Second, I am satisfied it is appropriate that a recovery order issue.  The father is entitled to have J live with him pursuant to orders of this court, and he is entitled to have K spend time with him pursuant to orders of this court.  He was at the Magistrates’ Court yesterday because the mother has sought an intervention order against him.  That application has been adjourned to 8 May.  She has brought no application to suspend or vary the orders of this Court.  In my view, and consistent with Guest J's order, a recovery order should issue.  I otherwise dismiss the application.  My reasons for judgment will be transcribed.

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            2008.

…………………………………………
Associate.