Warry and Witton

[2007] FamCA 616

FAMILY COURT OF AUSTRALIA

WARRY & WITTON [2007] FamCA 616

FAMILY LAW - CHILDREN – Interim – Ex parte application – Child returned to Australia in May 2007 pursuant to order of New Zealand Family Court – Unilaterally removed from school in Melbourne – Injunction restraining child’s removal from Australia

Goode v Goode (2006) FLC 93 - 286

APPLICANT: MR WARRY

RESPONDENT: MS WITTON

FILE NUMBER: MLC 6806 of 2007

DATE DELIVERED: 15 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person – application without notice

COUNSEL FOR THE RESPONDENT: No appearance

Orders

That until further Order the mother born … January 1971 her servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child D male born  … March 1997 from the Commonwealth of Australia

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the Airport Watch List until the Court orders its removal.

1. That until further order the child live with the father and spend such time with the mother, and communicate with the mother, as agreed between the parties.

1. That until further order the mother is by herself her servants and agents restrained from removing the child  from his school and from the possession of the father and in the event she does so remove or attempts to remove the child in contravention of this order she may be arrested without warrant.

1. That as soon as practicable the father serve the mother with the following documents:

   (a)application filed this day;

   (b)affidavit affirmed by the father this day; and

   (c)sealed copy of this order.

2. That the evidence given by the father this day be transcribed and a copy placed on the court file.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

4. That the copy judgment of Judge J H Walker of 17 May 2007 in the Family Court at North Shore, New Zealand be placed in the correspondence section of the court file.

IT IS FURTHER ORDERED

1. That the father be responsible for effecting service of a sealed copy of this Order upon the proper officer of the Australian Federal Police at Melbourne who is requested to give operation thereto.

2. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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.

3. That this matter be adjourned to 9 July 2007 in the Judicial Duty List at 10.00 am.

4. That the preparation of these orders be expedited forthwith.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6806 of 2007

MR WARRY

Applicant

And

MS WITTON

Respondent

REASONS FOR JUDGMENT

1. This application has been brought on as a matter of urgency.  It concerns the parties' son, D, born on … March 1997.  His parents commenced a relationship in August 1992 and separated in May 2005.  There have been no legal proceedings in Australia prior to today. 

2. The father deposed that from the time of separation until 29 December 2006 the parties shared the child’s care, by agreement.  The mother then took the child to New Zealand for a holiday.  He was to return to Australia on 25 January 2007.  He did not return.  Proceedings were begun in New Zealand under the Hague Convention in late January 2007.

3. After a hearing on 3 May 2007, Judge JH Walker of the Family Court at North Shore, New Zealand ordered, pursuant to the Care of Children Act 2004, that the child be returned to Australia forthwith.  The judgment is dated 17 May 2007 and a copy is before this court today.  The father collected the child in New Zealand on 24 May and returned with him to Australia on 27 May.  He has lived with the father here since.  To the best of the father's knowledge, the mother remained in New Zealand.  Walker J’s judgment makes it very clear that the mother proposed remaining in New Zealand, whatever the outcome of the case before him.  Her decision (not to return to Australia, even if his Honour ordered the child’s return), caused Walker J “some disquiet”.

4. On 11 June, the father's solicitors in Melbourne corresponded with the mother's solicitors in New Zealand, asking if they would accept service of documents relating to an application, filed in Australia, for parenting orders. 

5. This week the mother twice phoned the father's home.  She spoke to the child on one occasion and, when he was not available, said she would ring back on the second.  The last phone call was on Thursday.  She did not ring back.  The father assumed she was ringing from New Zealand.

6. Today, the father was advised that the child had been removed by the mother from his school, without any advice to him.  It was then that he came to this court and prepared this urgent application.  Fortunately, as he was walking into court, the principal rang him to advise that the child had just been returned to the school.  Nevertheless, in those circumstances, and having regard to the previous application under the Hague Convention, I am satisfied there should be an order restraining the mother from removing the child from Australia.  I am also satisfied that an order should provide that, until further order, the child live with his father and spend time with his mother, as agreed between his parents.

7. I am comfortable in making the interim residence order as the judgment of Walker J makes it clear that the mother’s position was that she would not return to Australia.  Walker J, and the parties, can only have envisaged the child living with his father on his return to Australia, at least until an Australian court considered the issue.  The father gave instruction for the preparation of an application for parenting orders after he returned to Australia with the child.  His solicitor is waiting on a response as to whether her solicitor in New Zealand has instructions to accept service on her behalf.  In these circumstances, and mindful of the Full Court’s decision in Goode v Goode (2006) FLC 93 – 286, it could not be in the child’s best interests to make an order for equal shared parental responsibility at this time. If the mother elects to seek parenting orders in the pending Australian litigation, that can be considered then.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  22 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WARRY & WITTON