Smeeden and Wulandri

[2012] FamCA 310

FAMILY COURT OF AUSTRALIA

SMEEDEN & WULANDRI [2012] FamCA 310

FAMILY LAW - ENFORCEMENT OF ORDERS – Recovery order – where the father seeks a recovery order for the child – where the mother has failed to return the child to the father in accordance with court orders – where the child is not currently living with the mother and is living with the mother’s son – orders that the father collect the child from the child’s school

APPLICANT: Mr Smeeden

RESPONDENT: Ms Wulandri

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners Lawyers

FILE NUMBER: SYC 7830 of 2009

DATE DELIVERED: 2 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Stewart Cuddy & Mockler

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Tiyce

Orders

IT IS DIRECTED

1. That the father collect the child K born on … February 2002 from School 3 forthwith.

2. That the independent children’s lawyer forthwith notify the principal of School 3 of the making of this direction.

3. That in the event that the father is unable to collect the child this afternoon the matter be listed before the Honourable Justice Rees at 10.30 am tomorrow morning for the issue of a Recovery Order.

4. That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smeeden & Wulandri 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 SYDNEY

FILE NUMBER: SYC 7830 of 2009

Mr Smeeden

Applicant

And

Ms Wulandri

Respondent

REASONS FOR JUDGMENT

1. Before the court in this matter is an application seeking an order that the mother forthwith within 24 hours, return the child K (“the child”) born in February 2002 to the applicant father, or in the alternate, in the event that the mother does not return the child to the father within one day of the date of these orders, that a recovery order issue.

2. Proceedings in relation to the parenting of the child were heard before Stevenson J for four days commencing on 27 June 2011 and judgment was delivered by Her Honour on 8 August 2011.  Relevantly, her Honour ordered that the father have the sole parental responsibility for the child and in order 5.6 that the child live with the mother on alternate weekends commencing in term one of 2012 from the conclusion of school on Thursday until Monday morning and that the child otherwise live with the father.

3. By application filed 28 March 2012 supported by an affidavit sworn on 27 March 2012 the father seeks a recovery order.  The Independent Children’s Lawyer sought different orders.  The Independent Children’s Lawyer sought an order that the father collect the child from his school at the conclusion of the school day, today.

4. The mother appeared before me without legal representation at court with her, however she told me that she had consulted a solicitor, Mr George Potkonyak of Capellia Legal.  The mother told me that Mr Potkonyak had advised her that she should appear on her own and asked for the matter to be adjourned to 14 May.

5. The documents which were served in these proceedings clearly indicate that leave was granted to serve short notice and that the matter was directed to proceed before me on 2 April 2012.  The matter is clearly urgent.  Tendered in the father’s case is a series of emails between the father’s solicitor and the mother’s solicitor.  It is clear that the documents were served on the father’s solicitor by email.

6. The mother’s solicitor then advised the father’s solicitor that he would not be able to attend court today due to an all day hearing in the Children’s Court and that his client would appear in person and take necessary directions from the judge.

7. In the circumstances where this child has not been returned to his father’s care since 5 March 2012, contrary to the orders which were made in the defendant proceedings, I indicated to the mother that I would proceed with the matter today.  The mother tendered in her case an email from her son, Mr F, to which reference will be made later.

8. The mother appeared before me without the assistance of any interpreter.  She was able to read and understand documents and made comprehensive submissions in the English language.  The mother told me in the course of the morning that the subject child is not living with her, but is living with her eldest son Mr F in Sydney Suburb 5.  The mother does not live with Mr F and the child.

9. The email which the mother tendered from Mr F to the father was sent on 31 March 2012 and reads as follows:

   Dear [the father’s first name], [School 3] had allowed me to enrol [the child] during this interim period of uncertainty for [the child].  At best they’ve claimed that they will provide a peaceful environment while [the child] is studying there.  For the time spent between schools [the child] was provided with exercise or problems book to occupy his mind.

   Let me remind you that you are and have been always welcome to ring and talk to [the child] over the phone before nine or 10 in the evening and 8.30 in the morning.  As well, parents should not force children to act if they do not wish to.  The children should follow directions which is why when [the child] does not wish to return to you, I wanted to appoint his previous psychologists who understand.

   To keep on record his mother and me did ask [the child] to return to you.  My mother did not breach the prescribed times of the order, as [the child] himself wished to stay at my home rather than nowhere.  [The child] understands about the time restrictions and he respects that.  Regards, [Mr F].

10. I am advised that Mr F has in fact caused the child to attend at School 3.  Given that the father has an order that he have sole parental authority in relation to the child, there is no authority in Mr F to enrol the child in any school.

11. The father in his affidavit material deposes to escalating difficulties in the child’s handovers and returns commencing almost immediately after the making of the orders of Stevenson J.  The father deposes to difficulties on the very first weekend that the mother was due to see the child.

12. The child was enrolled in School 4 to commence in January 2012 in year five, the father having moved in November 2011 to Sydney Suburb 6.  The father said that the child settled into school well and made new friends in the area and told the father that he liked his new school.

13. Pursuant to the orders of Stevenson J the mother collected the child after school on Thursday 1 March 2012 and was to return him to school, that is School 4 on 5 March 2012.  The father attended to collect the child on the afternoon of 5 March 2012 but the child was not at school.  The father spoke to the child’s teacher and was advised that the child had not been at school on that day and nor had he been at school on the previous Friday.  The father telephoned the mother and asked where the child was and was told by the mother that the child was with her, that he didn’t want to go to school and that he wanted to stay home.  There was then a further series of conversations between the father and the mother about the child’s return.

14. On 11 March 2012, the father went to the flat of the mother’s son Mr F in Sydney Suburb 5 to collect the child but was unable to take the child with him as he had requested.

15. On 18 March 2012 the father received an email from Mr F saying the child is declining to go to school and indicating an intention on the part of Mr F to enrol the child at School 3.  The father responded asking for the child to be returned.  The father’s solicitors sent an email asking for the child’s return on 19 March 2012 to the mother’s son Mr F and on 31 March Mr F sent the email to which I referred earlier in these reasons.

16. It is clear that the orders of Stevenson J require the child to be in the care of the father with the exception of the times when pursuant to Her Honour’s orders he is spending time with his mother.  The orders specifically do not allow the mother to determine that the child should live with her son Mr F, and accordingly, I propose to make arrangements for the child to be returned to the care of his father.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 April 2012.

Associate: 

Date:  30 April 2012