SIPOS & MARSDEN

[2015] FamCA 278

FAMILY COURT OF AUSTRALIA

SIPOS & MARSDEN [2015] FamCA 278

FAMILY LAW – CHILDREN - Commonwealth Information Order – application filed by father as location of the mother and child unknown – application adjourned to enable father to serve mother with the application – orders made requiring mother to appear at next court date and to deliver the child to the Counselling Section of the Family Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Sipos

RESPONDENT: Ms Marsden

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 6392 of 2012

DATE DELIVERED: 12 March 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eddington

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Fitzgerald

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of Tasmania

Orders

1. These proceedings be adjourned for mention before me at 9.00am on Wednesday 18 March 2015 before me at Hobart.

IT IS DIRECTED

1. The father file an affidavit of service of the Application for a Location Order upon the Government Department before 18 March 2015 and leave be given to the father to make written application for orders pursuant to s 67M in respect of the maternal family.

IT IS FURTHER ORDERED

1. Mr Sipos (‘the father’) and Ms Marsden (‘the mother’) appear in person (whether legally represented or un-represented) at the Family Court of Australia at Hobart, 39-41 Davey Street, Hobart before Benjamin J at 9.00am on Wednesday 18 March 2015.

2. Ms Marsden shall bring with her to the Court on Wednesday 18 March 2015 the child B born … 2010 and deliver the child shortly before 9.00am to the Counselling Section, Level 1, 39-41 Davey Street Hobart.

3. Pursuant to s 65DA(2) and s 62B, 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.

4. Leave be given to the parties to have the matter listed before me on the giving of four (4) hours notice.

5. THE COURT NOTES that given the material before the court, it has concerns about the well-being of the child in the care of the mother in breach of the orders made by this court.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sipos & Marsden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 6392 of 2012

Mr Sipos

Applicant

And

Ms Marsden

Respondent

REASONS FOR JUDGMENT

1. I think that I need to give some reasons for what we have done so far, and direct that they are taken out and placed on the court file. These proceedings relate to the child, B, who was born in 2010 (‘the child’), who was the subject of an order made by this Court on 25 January 2015 that he live with the father and spend time with the mother. The proceedings were ongoing before this Court. On 10 March 2015, the father filed an application in a case seeking a Commonwealth information order pursuant to s 67N of the Family Law Act 1975 (Cth) and a recovery order pursuant to s 67Q of the Family Law Act1975 (Cth)

2. The father also sought orders that the child live with him and that the time that the child spends with the mother be circumscribed.  That application came before a registrar of the Court the following day, which was yesterday, at which time the mother appeared.  This is a matter where an independent children’s lawyer is involved, and the mother apparently indicated to the Registrar yesterday that she did not know the whereabouts of the child, but then later made a concession that she may know about the whereabouts of the child, but would not provide that detail to the Independent Children’s Lawyer.  The material before me at the moment suggests that that is not the case. 

3. The father relied upon two affidavits: one by him and the other by his partner, both sworn 10 March 2015.  In his affidavit, the father deposed that the child was to be returned to his care on Monday 9 March 2015, and that he was unwell and he arranged for his partner to collect the child, as she had done on numerous occasions beforehand.  At 3.30 pm the mother had sent him a text and the father had been told by his partner that the mother was refusing to return the child. 

4. There were a series of texts and communications between the father, the mother and the father’s partner, none of which brought the child back to the care of the father.  The father contacted a police station and expressed concerns about the safety and well-being of the child in the care of the mother.  He sent a text to the mother saying that he wanted the child returned to him.  The father was informed, apparently, by the police that they went to the caravan park where the mother was allegedly staying and that neither the mother nor the child was there.

5. The child was supposed to be at school on Monday and Tuesday but was not at school.  The father made inquiries to see if the whereabouts of the child.  The father’s version of events was supported by evidence of his partner, Ms C, in her affidavit, to which I have alluded earlier.  From the father, it is clear that the mother attended at Court yesterday but was not willing to disclose the whereabouts of the child, and at one stage, as I said, denied that the child was anywhere where she knew or was in her care.

6. The consequence of that was that when I received the file and read that information yesterday, I made a chambers order requiring the mother and the father to be here personally today and that the child be placed in the care of the counselling section of the Family Court this morning, pending the matter being determined by me.  I indicated in that order that if it was not complied with, the father and the Independent Children’s Lawyer would be granted leave to make applications to enable the order to be complied with, given the unknown circumstances of a child of very tender years.

7. The matter came before me this morning at 10.00 am.  The Independent Children’s Lawyer was present.  The father and his partner were present, as was the father’s legal practitioner.  But there was no appearance by the mother, and an endeavour to call her by telephone that time did not achieve any end.  The matter was stood down until later today.  I asked both the Independent Children’s Lawyer and the father’s lawyer, if they had any concerns about the wellbeing of the child, and the Independent Children’s Lawyer said that he was not sanguine about the well-being of the child.

8. Accordingly, I have made the recovery order.  I also directed that notification be made to the police and to the Child Protection Authorities.  I later indicated to the parties that I would make a notification directly from the Court, unusual though that be.  Another order was made today requiring the mother to attend at 2.30 this afternoon, and the mother did not attend.  There is an indication, although not evidence, that the mother was provided with a copy of my order by email.  Whether she received it or not is not clear.

9. Given those circumstances, and the concerns that the father and the Independent Children’s Lawyer has and, frankly, the Court at this stage I make the following orders. 

10. This Court notes that, given the material before it, it has concerns about the well-being of the child in the care of the mother, in breach of the orders made by this Court. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 March 2015.

Associate:     

Date:              12 March 2015