Uhlman and Morton (No 3)

[2018] FamCA 990

FAMILY COURT OF AUSTRALIA

UHLMAN & MORTON (NO. 3) [2018] FamCA 990

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother has not attended Court – where the mother has failed to attend Court on two previous occasions – where the mother has not complied with a previous order to attend court and deliver the child to the child-minding centre – where the mother has not complied with orders for the child to spend supervised time with the father – warrant issued for the mother’s arrest.
Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 21.16
APPLICANT:	Mr Uhlman

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER: Hartley’s Lawyers

FILE NUMBER: MLC 2173 of 2017

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 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 all extant applications be adjourned for hearing before Johns J at 10.00 am on 16 November 2018.

2. That pursuant to rule 21.16 of the Family law Rules 2004 a warrant be issued for the arrest of MS MORTON born … 1975 (“the mother”) and such warrant be executed forthwith AND IT IS REQUESTED that the Australian Federal Police do all things necessary as a matter of urgency to execute the warrant.

3. That upon execution of the warrant, the mother be provided with a copy of the warrant and of this order and she be released on bail upon the giving of an undertaking by her to attend this Court at the Melbourne Registry at 10.00am on 16 November 2018 and in the event of the mother failing to give such undertaking she be brought before the Melbourne Registry of this Court.

4. That my reasons delivered this day be transcribed and placed upon the Court file.

5. 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 at 9.00 am on 16 November 2018 and in the event that the child is recovered before that date, to be returned to the father, Mr Uhlman and the matter to be listed before the Court as soon as practicable upon the child being placed in the father’s care.

   (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.

6. That in the event that the child is returned to the father’s care pursuant to Order 1(a) hereof, he deliver the child to the child-minding centre at 9.00 am on the day of the next Court event.

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 3) 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 2174 of 2017

MR UHLMAN

Applicant

And

Ms Morton

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court today having been adjourned to this date pursuant to orders made by me on 7 November 2018.  That day the matter was listed for the First Day of hearing.  It was anticipated that I would make trial directions listing this matter for final hearing in relation to the outstanding parenting applications before the Court with respect to the parties’ child, the child, who is aged two, almost three years. 

2. The mother did not appear at Court on 7 November 2018. 

3. That day the mother was called in the Court precincts and there was no answer to the call. 

4. The mother had also not attended at the previously listed Court event, being a hearing before Senior Registrar FitzGibbon on 25 September 2018.  In the circumstances, I made orders adjourning the matter to this day.  I also made orders for a recovery order in respect of the parties’ child, the child.  I stayed the operation of that order until 1:00 pm this day.  Paragraph 3 of the orders dated 7 November 2018 required the mother to personally attend at Court today and to deliver the child to the child-minding centre in this building.   

5. The mother has not complied with that order.  The child has not been delivered to the child-minding centre this morning in compliance with the order.  Further, the mother has not attended at Court.  She has been called in the Court precincts and has not answered the call.  Attempts have been made to communicate with the mother through her previous lawyers.  The mother has been called on her mobile telephone and she has not answered those calls.

Service

1. The orders made by me on 7 November required that the mother be served with those orders by email, and also that they be served on her general medical practitioner by email.  Orders were also made that there be substituted service of the orders and the pending interim applications upon Mr Morton, who is the mother’s former partner and the father of the child of the mother and Mr Morton, being P. 

2. I am satisfied that the mother has been served by email with the documents.  The father has filed an affidavit of Ms H on 8 November 2018.  That affidavit confirms that on 8 November the mother was served with the applications in a case filed 16 October and 2 November 2018, the affidavits of the father filed 12 October and 2 November 2018, an affidavit of Ms H sworn 5 November 2018, and a sealed copy of the orders I made on 7 November 2018.  The mother was also served with a covering letter addressed to her identifying the documents and confirming the requirement that she attend at Court this day, failing which a warrant may issue for her arrest. 

3. I am also satisfied that Mr Morton has been served with the documents as required pursuant to my orders of 7 November.  He was personally served with those documents by Mr Q who has sworn an affidavit of service, that affidavit having been filed on 8 November 2018.  That affidavit confirms that Mr Morton was served by hand on 7 November 2018 at his workplace in Suburb R.  Notwithstanding the covering letter served on Mr Morton requesting that he bring the documents to the mother’s attention, Mr Q deposes that Mr Morton informed him that whilst the documents could be left with him, the documents would be going straight into the recycling bin.  Mr Morton refused to sign an acknowledgment of service.   At the time that Mr Q attended upon Mr Morton he deposes that Mr Morton confirmed that he was the person identified in the Court orders. 

Discussion

1. The circumstances of this matter are extremely troubling.  The parties’ child is very young.  There are orders made that she spend supervised time with the father.  The father’s evidence is that the mother has not complied with orders to make the child available for that time.  That evidence is supported by the letter of Ms L who has been providing therapeutic counselling to the parties and who was the person appointed to provide supervision of the father’s time with the child. 

2. As I noted in my earlier reasons for judgment, Ms L has also attempted to communicate with the mother regarding Court orders and regarding arrangements for provision of supervision.  Ms L also has been unable to contact the mother regarding those arrangements. 

Conclusion

1. In the circumstances, the Court is left with little choice but to cause a warrant to issue for the mother’s arrest.  The mother has been required to attend two Court events, that being the hearing listed on 7 November as well as this day.  I am satisfied that the mother had notice of the hearing listed on 7 November.  The Notice of Ceasing to Act filed by her former solicitors, which was a document filed on 8 October 2018, identified for the mother that the next Court event at which she was required to attend was the hearing listed before me on 7 November 2018.  Having been served by email with the orders dated 7 November 2018, I am also satisfied that the mother had notice of the order requiring her to personally attend Court this day.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 November 2018.

Associate: 

Date:  9 November 2018