Vine and Crossley

[2016] FCCA 3180

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINE & CROSSLEY [2016] FCCA 3180

Catchwords:
FAMILY LAW – Recovery order.

Legislation:

Drug Misuse Act 1986 (Qld)

Family Law Act 1975 (Cth), s.67U

Applicant: MS VINE

Respondent: MR CROSSLEY

File Number: DGC 3660 of 2016

Judgment of: Judge Harland

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Dandenong

Delivered on: 23 November 2016

REPRESENTATION

Solicitors for the Applicant:  Bayside Solicitors

Respondent:  In person

ORDERS

1. The proceeding is adjourned for Interim Contested Hearing on 23 February 2017 at 9.30am in Dandenong before Judge Baumann.

2. Until further order, the child X born (omitted) 2015 live with the applicant.

3. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the child X born (omitted) 2015  and to deliver the child to the Applicant at 14B (omitted) in the State of Victoria, or such other place as the mother and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)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.

4. The applicant immediately notify the court on (omitted) upon X being returned to their care so that the matter may be listed for hearing at short notice.

5. The Respondent file and serve a Response, Affidavit in support and Notice of Risk within 28 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3660 of 2016

MS VINE

Applicant

And

MR CROSSLEY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a recovery order with respect to X, who was born (omitted) 2015, so who is not yet 18 months old.  The mother filed an affidavit and brought this application as urgently as she could after the father withheld X from her care.  She raises concerns about her safety in the father’s care. She alleges the father uses drugs, in particular, the drug ice. One of the annexures to her affidavit is a notice of adjournment from a Magistrates Court in Queensland with respect to a charge the father faces under the Drug Misuse Act 1986 (Qld) in Queensland. The mother says he missed that Court attendance in September.  The mother has contacted the police, who conducted a welfare check, but who have advised the mother’s solicitor that the father will not be extradited to Queensland because of the minor nature of the offence.

3. The mother has made several attempts to have the child returned to her care. She annexes a series of text messages between herself and the father, and what is clear is that the father does not express any concern about the safety of the child in the mother’s care, but rather seeks to cut the mother off because she has, according to him, re-partnered, and it appears that really the reason he is upset is that she has moved on from the relationship rather than return to him.

4. The mother says that this is the second time that the father has withheld the child from her and the last period was for eight weeks, and she says that the child was distressed by that and has had separation anxiety since then.  The mother is candid that she has had a history of using drugs. Both parents used drugs during their relationship. The mother says that she ceased using drugs.

5. I am satisfied the father is on notice of the proceedings today.  He has been called outside and has not attended Court.  I am satisfied that there are sufficient grounds to issue the recovery order, as there is a risk to this very young child’s welfare if the recovery order is not made.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  8 December 2016