Welldon & Welldon (No. 2)

[2007] FamCA 1479

FAMILY COURT OF AUSTRALIA

WELLDON & WELLDON (NO. 2) [2007] FamCA 1479

FAMILY LAW – CHILDREN – Application by party that Court requests intervention of welfare authority – Application for publication order – Publication order granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Welldon

RESPONDENT: Mr Welldon

FILE NUMBER: NCF 2097 of 2003

DATE DELIVERED: 27 August 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATE: 27 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: Boyd Olsen

SOLICITOR FOR THE RESPONDENT: Crane Butcher McKinnon

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Denise Clarke

Orders

1. That pursuant to s 121 of the Family Law Act 1975 permission is granted to publish or broadcast :

   (a)       in any newspaper or periodical publication;

   (b)       by electronic means including a website;

   a notice or report of these proceedings approved prior to publication by a Registrar of the Family Court of Australia.

2. That any notice or report of the proceedings published or broadcasted pursuant to these orders must be limited to:

   (a)      the child’s full name:           J

   (b)      DOB:  … December 1993;

   (c)      his photograph;

   (d)that a recovery order was issued on 20 August 2007 authorising all members of the Australian Federal Police and the State and Territory Police Forces and the Marshal of the Family Court of Australia to recover the child and the recovery order has not yet been executed.;

   (e)      that the child was last seen in the Macleay Valley Coast area in New South Wales; and

   (f)       a request for information as to the whereabouts of the child.

3. Any notice or report published or broadcasted pursuant to these orders must   include a request that any information as to the child’s whereabouts should be        given to the Australian Federal Police on telephone number … and should state that this number applies in all States and Territories.

4. The Registry Manager must urgently provide a copy of these orders to the Marshal for distribution to the Australian Federal Police and the State and Territory Police Forces.

5. In the event that the child is recovered after publication or broadcast of a notice or report approved under these orders then subject to any order to the contrary permission is granted to the publishing authority that published or broadcasts the notice or report to publish or broadcast:

   (a)       a report of the recovery that is limited to that fact;  and

   (b)       the role if any it played in the recovery provided such notice or report is         approved by a Registrar of the Family court of Australia

6. That the father’s Application in a Case filed 24 August 2007 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 2097 of 2003

MS WELLDON  

Applicant

And

MR WELLDON  

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On 21 August 2007 I gave reasons for issuing a recovery order issue the day before for police assistance to locate and recover the parties' son, J. These reasons are to be read in conjunction with my judgment delivered in the recovery order application.

3. On 24 August 2007 the father filed an application in the case seeking an urgent listing so that he could press an application for an order pursuant to s 91B of the Family Law Act 1975 (as amended) requesting that the Department of Community Services (DoCS) intervenes in these proceedings.  The proceedings concern the father’s application to vary parenting orders made 20 December 2005, relevantly by having J live with him.  

4. I directed that the father’s application in a case be listed before me urgently and it was made returnable the next working day.  The application is determined in the context of the Police presently being unable to locate J and thus give effect to the recovery order.

5. The father says that the parties agree that Dr S, a child and adolescent psychiatrist, will prepare a Chapter 15 report pending which the parties agree that J should go into a neutral residential placement.  His case is that it is likely that J is being supported by adults in hiding himself so that, in accordance with J’s wish, the orders requiring that he lives with his mother (and siblings) can be thwarted.  If an intervention order is made and DoCS agrees to take J into care, the father submits that this may result in J revealing himself.  The father submits that these unidentified adults may be able to get a message to J about the changed arrangements and thus he is likely to come forward. The submission is revealing.  It lends supports to the mother’s contention that people known to J and interested in this case are helping hide him from her and the court.  There appears to be some force to the mother’s submission that logic suggests these people are associates of the father’s.  Only time will tell whether this is the case.  In the event the father denies knowing who these people are.   

6. I am informed that the mother agrees with Dr S’ appointment but does not agree that with J's placement in a neutral place if it is suggested that this involves J going into care.  She points out that only last week the father opposed the Independent Children’s Lawyers proposal that J would stay with the mother’s brother for up to two weeks, the intention being that he would be in a known but neutral environment. 

7. DoCS have been notified that J is missing.  There have been a number of prior notifications concerning this child over a fairly prolonged period. To date DoCS has not sought to intervene and their investigations have not resulted in other forms of intervention or assistance to the family.  This suggests that to date DoCS has not considered that J has been at risk.  DoCS appears to be of the view that there is nothing further that they can do beyond that which is presently being done which will address the child's circumstances or progress his interests in some fashion.  The most urgent matter that needs to be attended to is finding J and ensuring his safety.  The former is not DoCS primary function. It is properly the responsibility of the State Police and, where ordered, the Federal Police.  As I have indicated, they are actively attempting to locate and recover J.  The available evidence does not suggest that if recovered and returned to his mother that J is exposed to an unacceptable risk of harm.  

8. At this point I see no utility in inviting DoCS to intervene.  If DoCS believes that J is at risk, irrespective of their involvement in these proceedings they have a statutory responsibility to the child. It DoCS perceives that they have something to contribute to this child and his family they may intervene as of right and their assistance would be most welcome.   

9. The father’s application in the case filed on 24 August 2007 will be dismissed.

10. The mother makes an oral application for a publication order.  In support of this application she relies on her affidavit sworn today and an affidavit by her partner, Mr G, also sworn today.  These affidavits address their recent dealings with police who have been trying to locate J.  The net effect of the affidavits is that the police have made contact with a number of the people who have filed affidavits in the father's case in support of his application for final orders that J live with him.  None of these people has given police information which has assisted in J being located.  It may be that they have none to give or it may be, as the mother suggests, that they have been less than frank with police.  Only time will tell which of the scenarios is apt.

11. In any event, the mother has been advised that police require the media’s assistance in order to locate J.  Regrettably, I am inclined to the view that there seems no other obvious avenue to finding this child.  If J does not have the support of friendly adults, which although unlikely cannot be totally discounted as nonetheless a possibility, it is necessary to give the police all the assistance they request in order to find J and ensure that he is safe.  I am satisfied that a publication order is in the child’s best interests and will order that one issue in the usual format.

12. One additional possibility is that if police consider that known people may have information concerning J’s whereabouts which is being withheld, consideration should be given to requiring those people to appear and answer questions on oath about the matter.  From the courts perspective this matter has the highest priority and if necessary, other matters will be shifted so as to accommodate any such request.

13. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  30 August 2007