Uhlman and Morton (No 2)

[2018] FamCA 989

FAMILY COURT OF AUSTRALIA

UHLMAN & MORTON (NO. 2) [2018] FamCA 989

FAMILY LAW – CHILDREN – where the whereabouts of the mother and child are unknown – where the mother has not attended Court – order made for an urgent recovery order – where the order is stayed to allow the mother to deliver the child to the Child Minding Centre – where the mother holds a British passport – where the mother’s parents are resident in the United Kingdom – where the mother’s behaviour indicates that she may pose a flight risk –  order made placing the child on the Airport Watch List – orders made substituted service.

Family Law Act 1975 (Cth)

APPLICANT: Mr Uhlman

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER: Hartley’s Lawyers

FILE NUMBER: MLC 2173 of 2017

DATE DELIVERED: 7 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paolini

SOLICITOR FOR THE APPLICANT: Aberdeen Lawyers

THE RESPONDENT: No Appearance

SOLICITOR ADVOCATE FOR THE

INDEPENDENT CHILDREN’S LAWYER

Ms Dosanjh

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Hartley’s Lawyers

Orders

(1)That an urgent recovery order be issued authorising and directing the Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers of the Commonwealth of Australia, with such assistance as required and if necessary by force as follows:

(a)To find and recover C born … 2015 and have the child returned to the Child Minding Centre at the Family Court of Australia at Melbourne, Commonwealth Courts Building, 305 William Street, Melbourne.

(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

1A.That the father’s Applications in a Case filed 16 October 2018 and 2 November 2018 be adjourned for hearing before Johns J at 11.00 am on 9 November 2018.

(2)That the operation of Order 1 be stayed until 1.00.pm on Friday 9 November 2018.

(3)That the Respondent Mother personally attend 305 William Street, Melbourne on Friday 9 November 2018 on Level 5 and deliver the child to the Child Minding Centre at 10:30 am and then attend on Level 4 at 11 am for the purpose of these proceedings.

(4)In the event that the Mother does not comply with Order 3 of these Orders a Warrant be issued for her arrest.

(5)That by way of substituted service the Father’s Solicitors personally serve on Mr G Morton the following documents:

(a)  A copy of these Orders;

(b)Applications in Case of Mr Uhlman filed 16 October 2018 and 2 November 2018;

(c)Affidavits sworn by Mr Uhlman on 2 November 2018 and Ms H sworn 5 November 2018;

(d)Covering letter to Mr Morton requesting that he bring the mother’s attention to the documents referred to in 5(a) to 5(c).

(6)That the Father’s Solicitors serve a copy of the documents listed at Orders 5(a)-5(d) upon:

(a)The Mother; and

(b)Ms I of the J Medical Practice in Suburb K

by electronic means.

(7)That the Father have leave to withdraw his Contravention Application filed 2 November 2018.

(8)That the Respondent Mother file a Notice of Address for Service with the Court within 3 days of the date of this Order and serve a sealed copy upon the Applicant Father’s lawyers and the Independent Children’s Lawyer.

(9)That neither party remove the child C born … 2018 (“the child”) from the Commonwealth of Australia without the prior written consent of the other party or by Order of the Court.

(10)That the child be and is hereby restrained from leaving the Commonwealth of Australia. AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintain the child’s names on the Airport Watch List for a period of one (1) year.

(11)That upon expiration of the period referred to in the preceding order above and subject to any further order of a court of competent jurisdiction the Australian Federal Police will cause the removal of the child’s names from the Airport Watch List.

(12)That if after the expiration of the period set out in order 11 above either parent seeks that the child’s name remains on the Airport Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit of Australia.

(13)That 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Uhlman & Morton (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2173 of 2017

Mr Uhlman

Applicant

And

Ms Morton

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today, it being a matter that has been allocated to my docket.  The purpose of today’s listing was to fix this matter for final hearing.  The issue before the Court relates to parenting applications in respect of the parties’ child the child, who is aged two years and 11 months.  This matter has had a long history before the Court.  The background to the matter is as follows.

Background

1. The father, who is the applicant in the proceedings, is Mr Uhlman.  He is aged 57 years.  The mother is Ms Morton.  She is aged 43 years. 

2. The parties commenced cohabitation in November 2012, they married in 2013 and separated in June of 2015.  The parties separated prior to the child’s birth. 

3. There have been proceedings before the Court since March 2017, those proceedings having been commenced by the father. 

4. The issue of future parenting arrangements has been a hotly contested matter between these parties for a considerable period and that there have been a number of interim hearings in this Court as well as proceedings in the Magistrates’ Court of Victoria in relation to allegations of family violence.

5. The matter more recently has been before this Court in relation to interim parenting arrangements.  Interim orders were originally made in August 2017 and at that time orders were made for the father to have supervised time with the child.  In addition, the parties were ordered to undergo psychiatric assessment.  Those assessments have now occurred and it would seem from the reports prepared that both parties have been assessed as having some personality issues, particularly obsessive compulsive traits.  But otherwise it would seem that there is no significant psychiatric issue that emerges from the expert reports.

6. Nonetheless, the father alleges that the mother’s behaviour has become increasingly of concern.  Her history in respect of these proceedings this year is indeed most troubling.  There have been contravention applications filed previously.  There was a contravention application before the Court in January 2018 and at that time Cronin J made orders requiring the parties to engage in some therapeutic processes to assist the father in establishing a meaningful relationship with the child.

7. Further applications were listed before Senior Registrar FitzGibbon on 25 September 2018.  That day, the mother did not attend Court.  She was represented by counsel, but that counsel was unable to obtain instructions from the mother as to her proposals.  An adjournment of the proceedings was sought on behalf of the mother on that occasion.  That application for an adjournment was refused and the Senior Registrar made orders for the child to spend supervised time with the father, initially with the assistance of counsellor Ms Ms L and thereafter such time to occur at a supervised contact centre.

DISCUSSION

1. The mother, I am told, has not complied with those orders.  Indeed, neither the father’s lawyer, nor the Independent Children’s Lawyer has been able to communicate with her since those orders were made. 

2. The mother had an application listed before the Magistrates’ Court of Victoria, both on … September 2018 and … October 2018.  On each of those occasions, the mother failed to appear at those hearings.  Her application before the Magistrates’ Court of Victoria was struck out on … October 2018. 

3. On 8 October 2018 the mother’s lawyers in these proceedings filed a notice of ceasing to act.

4. The father’s lawyers attempted to communicate with the mother by email and post on 10 October 2018.  There has been no response from the mother to those communications.  As a consequence, on 16 October 2018 the father caused his first Application in a Case to be filed at Court.  That application sought orders for the child to be placed on the Airport Watch List to ensure that she is not removed from the jurisdiction.  The basis for that application is the father’s concern that the mother is a flight risk.  She holds a British passport and her family, particularly her parents, are resident in the United Kingdom.

5. Whilst the child does not have an Australian passport, the father is concerned that the mother has the ability to obtain a British passport for the child. 

6. Attempts were made by a process server to serve the father’s Application in a Case on the mother.  There is an Affidavit of Attempted Service sworn by Mr M, which was filed on 31 October 2018.  In that affidavit, Mr M deposes as to two attempts to personally serve the mother at her residence, those attempts being on 24 October 2018 and on 28 October 2018.

7. At paragraph 5 of that affidavit, Mr M deposes as to his observations of the mother’s residence at N Street, Suburb O.  He deposes that when he attended that property to attempt service on 28 October 2018, he observed that there was no car at the property, that the gate was locked and that he jumped the gate to look inside the premises.  He observed that there was no furniture in the house, that there were no children’s toys inside or out.  Further, he noted that there was a “Sold” sign near the front door.

8. Based on that evidence, the father is concerned that the mother has fled that property, that her whereabouts are unknown and therefore the child’s whereabouts are unknown.  The records subpoenaed from the medical centre at which the mother attended on 21 September 2018, indicated that she had then told her treating doctor that she was residing at a women’s refuge.  The mother has made no contact with the father or his lawyers to indicate her whereabouts.

9. In his affidavit filed in support of his applications, the father deposes that clerks at his solicitor’s office have attempted to telephone the mother.  Messages have been left on her mobile telephone service.  She has not responded to those messages. Attempts to telephone the mother at her landline number indicate that that landline service have been disconnected or is not in service. 

10. It is against that backdrop that the father now seeks orders on an ex parte basis that the child be placed on the Airport Watch List.  Further, an application is made for a recovery order, that Application in a Case having been filed on 2 November 2018. 

11. The application made by the father is supported by the Independent Children’s Lawyer, who has expressed significant concerns as to the mother’s actions and her failure to engage in the court process, which thereby is inhibiting the father’s ability to have a relationship with the child. 

12. In addition to the matters to which I have already referred, reliance is placed upon a letter from Ms L, who has been engaged in reportable therapeutic counselling with the parties.  That letter, which is Exhibit M1, is dated 2 November 2018.  Ms L, in that correspondence, sets out her efforts to communicate with the mother regarding arrangements for supervised time.  Ms L’s experiences echo those of the father and the father’s lawyer insofar as her efforts to communicate with the mother have proved fruitless.  She has been unable to contact or communicate with the mother and, as a result, has been unable to assist the parties further with supervised time. 

13. Ms L also makes observations as to her assessment of the father’s capacities.  She presents a very positive picture of what she has observed of the father and the child in the supervised time that has occurred to date.  She has observed that he has behaved appropriately, has been responsive to the child’s cues, and attuned and sensitive to the child’s needs in that setting.  Ms L is supportive of the child continuing to have the opportunity to spend time with the father in the context of the orders that have already been made. 

14. At the commencement of the hearing today the mother was called and did not answer the call.  The matter was stood down whilst I attended to other matters and, again, prior to me resuming the hearing of this matter, the mother was called.  She has not attended at Court this day.

15. I am mindful of the young age of the child.  She is a toddler.  I am concerned that to make a recovery order in respect of such a young child could give rise to distress and trauma for her.  Therefore, in my view, it is appropriate that I give the mother the opportunity to attend Court and to deliver the child to Court rather than having the police execute the recovery order and recover the child. 

16. The difficulty, of course, from the father’s perspective, is that the mother’s whereabouts are currently not known.  I, therefore, intend to make an order for substituted service.  The mother has another child, P, who is aged nine years and, I am told is regularly in communication with the father of that child.  Further, I am told that the father’s lawyers have previously communicated with P’s father by email. 

17. The mother’s decision to disengage from the Court process is most concerning and in circumstances where she has family overseas, her behaviour indicates that she may pose a flight risk.  In those circumstances, an Airport Watch List is appropriate.

18. I am satisfied having regard to the history which I have identified that the orders that I am asked to make are appropriate and in the child’s best interests. 

19. I am mindful, of course, that the mother has not yet had an opportunity to put any responding material before the Court and it may well be that upon having been afforded that opportunity, that there is another view to the chronology which I have outlined.  It is for that reason that I am inclined to ensure that the matter returns to Court quickly to enable her to properly put her position. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 November 2018.

Associate: 

Date:  7 November 2018