Stokes and Voss

[2007] FamCA 84

FAMILY COURT OF AUSTRALIA

STOKES & VOSS [2007] FamCA 84

FAMILY LAW - PARENTING - Magellan - Mother filed in breach of orders - Recovery order - Children to spend time with the father until further order

Family Law Act 1975 (Cth)

FATHER: Mr Stokes

MOTHER: Ms Voss

SECOND RESPONDENTS:

THIRD RESPONDENT:

Mr Easton and
Ms Sexton

Mr Pearson

INDEPENDENT CHILDREN’S LAWYER: Independent Children's lawyer

FILE NUMBER: MLF 2143 of 2005

DATE DELIVERED: 13 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 February, 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Mr. Thomas

SOLICITOR FOR THE FATHER: Ian G. Hone

SOLICITOR FOR THE MOTHER: Perry Weston

SOLICITOR FOR THE SECOND RESPONDENTS: Reale Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mrs Hooper

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Macgregors

Orders

1. That all times be abridged to allow the matter to proceed exparte.

1. That all previous parenting orders in respect of S born in January, 2000 and H born in February, 1995 (including any orders that the children live with the mother) be suspended until further order.

1. That until further order S and H spend time with the father.

1. That until further order S and H spend no time with the mother, save pursuant to Court order or with the written consent of the parties, and the question of her time with the children and communication with the children in the future be reserved. 

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 S born in January, 2000 and H born in February, 1995  and deliver the said children to the father forthwith, he being the person entitled to spend time with the children pursuant to orders made in the Family Court of Australia this day.

1. That until further order the mother, by herself, her servants or agents be and is hereby restrained from removing or attempting to remove the said children S born in January, 2000 and H born in February, 1995 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court. 

1. That as soon as practicable the solicitor for the father 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 if the mother takes or attempts to retake possession of  S born in January, 2000 and H born in February, 1995 after execution of the recovery order, she may be arrested without warrant. 

1. That H’s father Mr Pearson born in October, 1974 be joined as a party to these proceedings.

1. That as soon as practicable a party who seeks a parenting order in respect of H file and serve a copy of each relevant application and affidavits filed in support on Mr Pearson. 

1. That in the event Mr Pearson seeks to oppose any orders sought by a party in respect of H he file and serve the following documents no later than 2 March, 2007.

   (a)form 1A response;

   (b)form 2A response;  and

   (c)affidavit or affidavits in support.

1. That pursuant to s.67N(2) of the Family Law Act 1975 the Business Manager of Centrelink shall give to the Registry Manager of this Registry of the Court such information as is contained in or comes into the records of Centrelink about the location of Ms Voss born in September, 1976, S born in January, 2000, H born in February, 1995 and Mr Pearson born in October, 1974.

1. That information to be provided to the Registry Manager includes the payee, financial institution, account name and number of any payment by the Department to or in relation to the children or the mother or Mr Pearson.

1. That the records to which these orders apply should be searched at least once every three months and the Registrar is to be notified of the result of each search.

1. That the Registry Manager forthwith provide any information received pursuant to these orders to the solicitors for the parties and the independent children’s lawyer;  a process server engaged by the solicitors for the father, paternal grandparents or independent children’s lawyer to serve documents on the mother or Mr Pearson in these proceedings;  and the persons to whom the recovery order issued in these proceedings in respect of the children is addressed  PROVIDED THAT  save pursuant to Court order the information not be divulged to the father or paternal grandparents.

1. That as soon as practicable the solicitors for the father serve the mother and Mr Pearson with :

   (a)copies of the form 1 and form 2 application filed this day;

   (b)sealed copy of orders of 7 February, 2007;  and

   (c)sealed copy of this order.

1. That all extant applications be adjourned to the judicial duty list at 10:00 am. on 5 March, 2007.

1. That either party have liberty to apply on short notice to the Magellan Registrar.

1. That any amended applications or responses and additional affidavits be filed and served by the father, paternal grandparents or the independent children’s lawyer no later than 28 February, 2007.

1. That the notification of risk of abuse pursuant to s.67ZA of the Family Law Act 1975 prepared by the family consultant herein and dated this date, be filed and served.

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.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES

1. That the solicitor for the mother attended the hearing as a courtesy to the Court but made no submissions, having been unable to obtain instructions from the mother.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2143  of 2005

Mr Stokes

Father

And

Ms Voss

Mother

And

Mr Easton and Ms Sexton
Second respondents

And

Mr Pearson
Third respondent

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This case involves the parties’ son, S, born in January, 2000.  It was listed in the Magellan defended sittings which commenced on 5 February.  On 6 February, pursuant to an order made the previous day, Ms W observed S and the father together; she then gave an oral report, which has been transcribed and is on the Court file.  On Wednesday 7 February the Court was advised that, after considerable discussions between the parties (all of whom were represented) and counsel for the independent children's lawyer, the parties had agreed on a form of interim orders to operate until 8 June, when the case would be listed before me.  The independent children's lawyer was a party to those discussions, and made no submissions in opposition to the proposed orders, but did not formally consent to their making.

1. The orders were premised on S continuing to live with his mother and spending time with his father, unsupervised, in a phased‑in regime.  They provided that any overnight time the father spent with S be at the home of the paternal grandparents.  A number of specific-issues orders were made.  The regime was to commence at 11 am on Sunday, 11 February 2007.

1. The mother has another son, H, born in February, 1995.  His father is Mr Pearson.  The orders provided for H to spend time with the father and S, if he chose to do so.

1. The father's evidence this morning is that he attended an inner suburban police station in Chapel Street on Sunday, to collect S pursuant to the orders.  He arrived about a quarter of an hour early.  He waited for more than an hour.  Neither the mother nor child appeared.  He made inquiries at the police station prior to 11.00 am and again prior to leaving around noon.  There was no indication that anybody had contacted the police station about the case.  He made sure that the police knew he had attended, in case the mother and S arrived late. 

1. I have been told by counsel for the independent children's lawyer that on Friday, 9 February, the mother contacted the independent children's lawyer to confirm the time contact was to commence on Sunday.  The time was confirmed.  On Monday the father's solicitors advised the independent children's lawyer that the mother and S had not appeared.  She contacted the children's school and learnt neither was at school.  She contacted a worker who has been assisting the mother and ascertained that S had not attended an appointment at CAMHS on Monday.

1. Having legitimate concerns about the wellbeing of the children and, indeed, the mother, the independent children's lawyer contacted police.  The fire brigade became involved and broke into the mother's home.  No-one was present and the house was completely empty;  all belongings had been removed.  Inquiries made by police indicate that at midnight on either Thursday or Friday, the mother and children left her home in a vehicle, assisted by a man.  The independent children’s lawyer can only speculate about the identity of the man.  Possibilities include the mother's brother, or Mr Pearson. 

1. The interim orders made on 7 February provided that H be permitted to spend time with the father and S, should he choose to do so, from Friday, 25 March.  No other parenting orders have been made in these proceedings in relation to H.  His father, Mr Pearson, is not a party to the proceedings. 

1. The original family report of Ms W raises issues of grave concern.  The safety of S and H must be the Court’s priority.  The father now seeks parenting orders in respect of H, an application brought ex-parte as the whereabouts of the mother (and Mr Pearson) are unknown.  I can find, based on Ms W’s evidence, that the interaction between S and the father on 6 February was comfortable and affectionate.  S, a child who has been electively mute, chatted with his father, a man he had not then seen for over two years.

1. It is S and H’s best interests which are paramount.  Their need for protection requires that they be found and spend time with the father until further order.  The existing orders require no formal supervision of his time with them;  the only limitation related to the place where overnight contact was to occur. 

1. I add that Ms W has today made a notification to DHS that, in her opinion, the children are at risk of abuse at the moment.  Further investigation will be a matter for DHS.

1. Given the evidence before me, I propose to order that, until further order, the children spend no time with the mother, save pursuant to court order or with the written consent of the parties.  The question of her time with, and communication with, the children will be otherwise reserved.  I am satisfied that a recovery order should issue to take possession of H and S and I will have their names placed on the Watch list.  To that end I will also make a Commonwealth information order, directed to Centrelink, to find information relevant to the whereabouts of the mother, children and Mr Pearson.

I certify that the preceding
11 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of          2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STOKES & VOSS