Vaughan & New

[2016] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAUGHAN & NEW & ANOR [2016] FCCA 1780

Catchwords:
FAMILY LAW – Ex parte application – urgent recovery – 11 month old baby.

Legislation:

Family Law Act 1975, ss.67T, 67V, 67Q

Applicant: MS VAUGHAN

First Respondent: MR NEW

Second Respondent: MS TAYLOR

File Number: PAC 2926 of 2016

Judgment of: Judge Obradovic

Hearing date: 7 July 2016

Date of Last Submission: 7 July 2016

Delivered at: Parramatta

Delivered on: 7 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Wilkins

Solicitors for the Applicant: Phillip A Wilkins & Associates

Counsel for the Respondents: No appearance

Solicitors for the Respondents: No appearance

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The child X born (omitted) 2015 shall live with the mother.

THE COURT FURTHER ORDERS THAT:

1. The matter is to proceed today on an ex parte and undefended basis as against the First and Second Respondents.

2. A Recovery Order is issued pursuant to Section 67Q of the Family Law Act 1975.

3. Stand over all other applications sought by the mother including further interim orders sought in the Initiating Application filed 1 July 2016 to the next court occasion.

4. List the matter for further directions at 9.30am on 8 August 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2926 of 2016

MS VAUGHAN

Applicant

And

MR NEW

First Respondent

MS TAYLOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a recovery order within the meaning of section 67Q of the Family Law Act 1975 with respect to X, born (omitted) 2015.  By Initiating Application filed on 27 June 2016, the mother sought leave for the matter to be listed at short notice.  Such leave was sought on 27 June 2016 and granted by the Registrar.  An order was made for service of the Application and supporting documents to be effected by 1 July 2016 at 4 pm.

2. An Affidavit of service filed on 5 July 2016 indicates that the First Respondent, who is the father of the child, was served with the documents on 3 July 2016, contrary to the order made by the Registrar on 27 June 2016, but nonetheless served.  There is a further Affidavit of attempted service filed 5 July 2016 with respect to attempts at service on the Second Respondent which have been made since the order for short notice was made by the Registrar on 27 June 2016.  The mother has also filed an Application in a Case on 1 July 2016 seeking an airport watch list order and a restraint on all of the parties from removing the child from the Commonwealth of Australia.

3. At the hearing today there was no appearance by either the First or the Second Respondents.  I am satisfied that the First Respondent has been served and has had notice of today’s return date and I am satisfied that the matter ought to proceed on an ex parte basis as against both the First and Second Respondents due to their non-appearance in Court today.

4. By way of a brief background history as detailed in the Affidavit of the mother filed 27 June 2016 and her further Affidavit filed 1 July 2016, the Applicant is the mother of X who, at the date of the hearing, is 11 months old.  She will be 12 months old before the end of this month.  The First Respondent is the father of the child and the Second Respondent is the paternal grandmother.

5. The parties were initially in a relationship between 2002 and 2006.  They reconciled in 2014 and on (omitted) 2014 the parties commenced living together in Melbourne, Victoria.  X, the subject child of these proceedings, was born on (omitted) 2015 while the parties were still together and living in Melbourne.  On or about 21 March 2016, the parties separated and, at that time, the mother moved back to Sydney.  The mother says that the father did not object to her returning to Sydney with the child.  The mother currently lives in (omitted) in Sydney with her parents.

6. For the first two months after the mother returned to Sydney the father did not have any time with X.  However, the mother says that at that time she indicated to the father that whenever he was in Sydney he could spend time with the child.  On 12 May 2016, the mother self-admitted to (omitted) Hospital, as she was suffering from depression.  At that time, the Department of Family and Community Services advised the mother that she could not be admitted into hospital with X and that X either had to stay with her father, the father’s family or be placed into foster care.  Consequently, the mother arranged for X to stay with the father and his family in Sydney during the mother’s stay in hospital.  It is unclear why the mother’s parents could not look after X during that period of hospitalisation.

7. The mother remained in hospital for 12 days and, upon her release, she was reviewed by the mental health team and assessed as suitable to care for X.  The mother collected X from the Second Respondent’s home on 30 May 2016.  At the time the mother collected X, the father was not at the home. There followed an arrangement between the parents for X to spend time each week with her father from Thursday until midday on Saturday and this arrangement continued for approximately two weeks.  The time that X spent with her father occurred at either his mother’s home or his father’s home.

8. On 10 June 2016, the Second Respondent came to collect X from the mother’s home.  On the following day, which was 11 June, the mother sent a text message to the father asking that the child be returned to her by 4 o’clock that day.  The father was not in Sydney while X was meant to be spending time with him and was instead spending time with her grandmother.  There was then a telephone conversation between the mother and the paternal grandmother which, it appears on the mother’s evidence, got more than a little heated.  The end result of that conversation was that X was not returned to the mother’s care, despite the mother asking the grandmother to return X to her care.

9. The mother contacted the police and she made further attempts to contact both the father and the Second Respondent.  Later that evening, the mother was served with an Apprehended Violence Order where the paternal grandmother alleged that the mother had threatened to burn down her house.  The mother denies such allegations, however, when the Apprehended Violence Order matter came on at Fairfield Local Court on 24 June 2016, the mother was unrepresented and consented to the Apprehended Violence Order without admission.

10. On 14 June 2016, the mother contacted Legal Aid and sought advice in relation to obtaining a recovery order.  It is understood that at about that time the mother also made an application for legal aid in respect of these proceedings.

11. The child has not been returned to the mother’s care since 11 June 2016, for a period of almost four weeks and the mother has not seen the child during the entirety of that period.  On the mother’s evidence, it is unclear whether she knows where the child presently is, although she suspects that the child is being held at the paternal grandfather’s home in (omitted).  The mother consequently seeks an order for the return of X.

12. I am satisfied pursuant to section 67T of the Act that the Court is able to make a recovery order in support of the mother’s application and that she is at the very least a person concerned with the care, welfare and development of the child. In proceedings for a recovery order, the Court may, subject to section 67V, make such recovery order as it thinks proper. Pursuant to section 67V, in deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interests of the child which are a paramount consideration.

13. I am satisfied, based on the evidence before me, that the Court should proceed to hear this matter on an ex parte basis, in particular given the very young age of the child and the fact that the mother has been her primary carer since birth, except during the last four weeks when she has been withheld from her care.  I am satisfied that a recovery order ought to be issued and that such an order is in X’s best interest.

14. I shall bring the matter back to Court as quickly as possible for the father and for the Second Respondent to have an opportunity to be heard, and I will require both the father and the Second Respondent to be present in Court on the next occasion the matter comes back.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 7 July 2016