Tesluk and Gordon

[2009] FamCA 952

FAMILY COURT OF AUSTRALIA

TESLUK & GORDON [2009] FamCA 952

FAMILY LAW - CHILDREN - Interim proceedings - Application by the mother of a 20 month old child for a recovery order, Commonwealth Information Order, interim parenting orders and interim injunctive orders - Mother and father separated in August 2009 and ten days later the father disappeared with the child - Recovery order issued for the return of the child to the mother - Each party is restrained from removing the child from Australia and the child’s name is placed on the Airport Watch List - Pending further order the child live with the mother - Commonwealth Information Order made

Family Law Act 1975 (Cth) ss 67N, 67K, 67T

APPLICANT: Ms Tesluk

RESPONDENT: Mr Gordon

FILE NUMBER: NCC 2240 of 2009

DATE DELIVERED: 10 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Ms H A Blackman

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

PENDING FURTHER ORDER

1. The child … (“the child”), born … January 2008, shall live with the applicant mother.

2. The Secretary of Centrelink shall provide 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:

   (a)       The child …, born … January 2008;

   (b)The father, Mr Gordon, a person whom the Court has reasonable cause to believe has the child.

3. For the purpose of these orders “information” is defined to mean details including but not limited to, the payee, financial institution, account name, and account number to whom, and into which, any payment by Centrelink is made in respect of the child and/or the father or any other person with whom the records suggest the child may be.

4. The records to which these orders apply shall be searched within 14 days and then at least once every month, and the Registry Manager of this Registry of the Court is to be notified of the result of each search within seven days after each search.

5. This Commonwealth Information Order will remain in force for 12 months.

6. The Registry Manager is permitted to disclose information provided pursuant to these orders to:

   (a)       The legal advisor of the applicant;

   (b)The process server engaged by the legal advisor of the applicant to serve documents upon the respondent in these proceedings; and

   (c)The persons to whom the recovery order in these proceedings concerning the child are addressed.

7. This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory police services.

8. The persons to whom this recovery order is addressed are authorized and directed to find and recover the child born …. January 2008, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found.

9. Upon recovery, the child is to be delivered to the applicant mother at W Street, E, or to the person nominated by her in writing to receive the child on her behalf.

10. Until the child is returned under these orders, and pending further orders:

    (a)The respondent father Mr Gordon is prohibited from again removing or taking possession of the child.

    (b)The persons to whom this recovery order is addressed are authorized and directed to arrest the father without a warrant if he again removes or takes possession of the child.

11. The recovery order will remain in force for 12 months.

12. The respondent father is restrained from commencing or proceeding with any application for a passport for the child from the Australian Department of Foreign Affairs or any consulate or any other appropriate authority.

13. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the child to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list pending further order.

14. The matter is referred back to the Registrar who will notify the applicant mother of the next return date for further procedural orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2240 OF 2009

MS TESLUK

Applicant

And

MR GORDON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pending before the Court is an Application in a Case filed by the applicant mother on 8 September 2009.  In essence, that Application seeks procedural orders, a recovery order, a Commonwealth information order, interim parenting orders and interim injunctive orders, all relating to a child of the mother, being a son, born in January 2008. 

2. In support of her Application, the mother reads her affidavits filed on 2 September 2009 and 8 September 2009. 

3. Briefly stated, the history is as follows. The applicant mother and the respondent father to these proceedings, Mr Gordon, were in a relationship from 2005 until on or about 21 August 2009.  The child I have mentioned, the parties’ son, was the sole child born to that relationship.  The child is now aged about 20 months. The mother has been the principal carer for the child. 

4. On 7 August 2009, the parties and the child moved from interstate to the Central Coast area of New South Wales.  Upon arrival on the Central Coast, the parties met with the father’s sister and brother-in-law who had travelled to that location from the United States of America.  The respondent father’s sister holds dual citizenship as an Australian and an American.  The father’s brother-in-law is an American citizen.

5. As at 21 August 2009, the parties and the child lived in a caravan park on the Central Coast. The father’s sister and brother-in-law lived in a separate caravan but within the same park. 

6. Following separation, on or about 21 August 2009, the father stayed with his sister and brother-in-law in their caravan.  The mother and the child remained living together in the same park but in a different caravan.

7. Some 10 days after separation, on or about 31 August 2009, the father disappeared with the child from that caravan park and they have not since been seen by the mother.  The mother’s frantic efforts to locate the father and the child have been futile. 

8. The father has occasionally returned the mobile telephone text messages sent to him by the mother, but the father has refused to divulge his location and has denied any communication between the mother and the child. 

9. A couple of days later, on 2 September 2009, the mother filed an Initiating Application and a supporting affidavit in the Federal Magistrates Court of Australia.  That application was listed for mention before a Federal Magistrate on 22 September 2009.

10. On 8 September 2009, the mother filed her Application in a Case and a supporting affidavit.  The return date of 22 September 2009 originally allocated to the Initiating Application was vacated by the Registrar.  The proceedings were transferred by the Registrar from the Federal Magistrates Court to the Family Court of Australia, returnable today before me.  The orders now sought by the mother in her Application in a Case supplant in entirety the interim orders sought in her Initiating Application. 

11. There are no parenting orders in existence in relation to the child. The recovery order and Commonwealth information order are sought by the mother on the basis that she is a person concerned with the care, welfare and development of the child (see sections 67T(d) and 67K(1)(d) of the Family Law Act). 

12. The respondent father is not present to contest these proceedings.  The mother seeks orders on an ex parte basis because she is unable to locate the father for the purposes of service of documents upon him. 

13. Although a Commonwealth information order was sought, the mother had not complied with section 67N(3) of the Family Law Act, in that the Government instrumentality to which the proposed order is directed, being Centrelink, had not been served with copies of the documents she relies upon. 

14. When the matter came before me earlier this morning, I stood the matter in the list until 2 pm, and I made procedural orders permitting service of the documents upon the proper officer of Centrelink by way of facsimile transmission. 

15. The matter was recalled before me at 2 pm.  There was no appearance by Centrelink.  The mother tendered an affidavit of service sworn today by her legal representative, Ms Hayley Anne Blackman, and as a consequence of the contents of that affidavit, I am satisfied that Centrelink has been served in accordance with the procedural orders that I made earlier this morning.  I am further satisfied that Centrelink is aware of the orders being sought by the mother and does not resist them.

16. Self-evidently, Centrelink has only had a number of hours to respond to the mother’s application – not the seven days envisaged under section 67N(3) of the Family Law Act.  Before the court can make a Commonwealth information order, the mother must satisfy the court that special circumstances exist, by reason of which the court should make the Commonwealth Information order, notwithstanding that Centrelink has not had seven days within which to consider and respond to the mother’s application.

17. I am satisfied that such special circumstances exist for a number of reasons. 

18. Firstly, the affidavit of service sworn by Ms Blackman contains a responsive letter from Centrelink indicating that Centrelink does not resist the application.  In those circumstances, adjourning the matter for a period of seven days would be pointless.

19. Secondly, the circumstances of the family are compelling.  The child is only 20 months of age.  The child has not spent more than one night away from the mother before the child was abducted by the father in deceptive circumstances about 10 days ago on 31 August 2009.  At that time, the child had bronchitis and was just finishing a course of antibiotics.  The current state of health of the child is unknown. The child is also overdue for his 18 months vaccinations, and the mother still holds the child’s blue health record book, which is clearly not in the possession of the father.

20. The father is deliberately evading detection, apparently with the assistance of his sister and American brother-in-law.  The mother has not been served with any process by the father, instituting proceedings before any other court exercising jurisdiction under the Family Law Act, seeking parenting orders in respect of the child.

21. I am satisfied on the evidence available that the best interests of the child would be served by the child being back in the care of the mother, at least on an interim basis.  I am satisfied that the mother has established her case for interim orders to be made on an ex parte basis, as she proposes. 

22. The orders I make are as follows.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  2 October 2009