WICKS & FOOTE (No.3)

[2018] FCCA 3994

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKS & FOOTE (No.3) [2018] FCCA 3994

Catchwords:
FAMILY LAW – Application for recovery order – undefended as against the father – recovery order made for child to be returned to the mother.

Applicant: MS WICKS

Respondent: MR FOOTE

File Number: PAC 3888 of 2017

Judgment of: Judge Obradovic

Hearing date: 24 September 2018

Date of Last Submission: 24 September 2018

Delivered at: Parramatta

Delivered on: 24 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Rebehy

Solicitors for the Applicant: Coode & Corry

THE COURT ORDERS THAT:

1. Pursuant to Section 67Q of the Family Law Act 1975:

TO: The Marshal of the Federal Circuit Court of Australia

All Officers of the Australian Federal Police

All Officers of the State and Territory Police Forces of Australia

You are authorised and directed with such assistance as you require, and if necessary by force, to find and recover the child [X] (female) born … 2005.

You are required to deliver the said child to the Applicant Mother at a place nominated by the Officer who recovers the child pursuant to this Order.

The Marshal, all Officers of the Australian Federal Police and all Officers of the State and Territory Police Forces of Australia be permitted to provide to the Applicant any address provided under a location order if necessary to enable the Applicant to collect the child.

The Applicant is to pay any associated travel costs of the child’s return.

For the purposes of finding and recovering the said child you are authorised and directed, with such assistance as you require, and if necessary by force 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 said child may be found.

If Mr Foote again removes the said child from the Applicant pursuant to orders made herein on 24 September 2018 he may be arrested without a warrant.

This Order remains in force for a period of twelve months.

1. Order 4 made on 9 August 2018 for the child to spend time with the father is suspended pending further order.

2. Grant leave to the mother to file and serve an Amended Initiating Application within 28 days. 

3. Direct the Respondent to file and serve a Response, Affidavit and Notice of Risk by 4pm on 16 November 2018.

4. List the matter for directions at 9.30am on 21 November 2018.

5. Reserve the mother’s costs of today noting that Counsel appeared and it was reasonable for Counsel to do so.

THE COURT NOTES THAT:

A.Depending on any Amended Initiating Application having been filed it may be that the Court discharges the order made today suspending the father’s time with the child. 

IT IS NOTED that publication of this judgment under the pseudonym Wicks & Foote (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3888 of 2017

MS WICKS

Applicant

And

MR FOOTE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an urgent recovery application in relation to 13 year old [X], born on … 2005.  The Court made final orders in this matter on 9 August 2018.  Those orders being made on an undefended basis as against the father who did not appear at the final hearing, but by consent between the mother and the Independent Children's Lawyer who represented [X]’s best interests during those proceedings.

2. Proceedings were finalised on 9 August 2018 with orders for the parties to have equal shared parental responsibility for [X], for [X] to live with the mother and for her to spend time with the father in accordance with those orders, being during the school term each alternate weekend and also each Thursday for a period of about three to four hours.

3. On Wednesday, 5 September 2018 [X] came to be in the father’s care.  It seems that she ran away from school on that day and made her way to the father’s residence.  The father did not make any attempt to have [X] return to the mother’s care or for her to go back to school on the following day.  Indeed, it appears from the mother’s evidence that [X] has not attended school since she ran away on 5 September 2018. 

4. While she is a 13 year old child, there is evidence before this Court which suggests she does not have the intellectual or emotional capacity of a 13 year old, but rather that she, because of her special needs, is a child who is more akin to a 10 year old in terms of her capacity.  She has been diagnosed with Autistic Spectrum Disorder and Oppositional Defiance Disorder and she receives care in respect of those matters in accordance with what is outlined in paragraph 4 of the mother’s affidavit.

5. The child also takes regular medication which it appears, on the evidence before the Court, she may not be taking since coming into the father’s care.  Not only has the father refused to return the child to the mother’s care in accordance with final orders made on 9 August 2018, but he has not ensured that she attend school. While the father did ensure that [X] attended a specialist appointment shortly after she came to be in his care, it appears that the child has not been taking the prescribed medication because such medication remains with the mother.

6. It is alleged that when contact was made between the mother’s solicitor and the father, the father has made threats by saying to Mr Williams, the mother’s solicitor, words to the effect of, “I’m going to hunt every one of you down.”  The mother’s solicitor has made a notification to Suburb J Police Station reporting the conversation between himself and the father on 6 September 2018.  However, it appears that the police have not taken any action as a result of that complaint and notification being made to them. The father was served with the Initiating Application, the mother’s Affidavit and other documents filed in support of the application on 14 September 2018 at 11.40 am.  That was 10 days prior to the first return date of that Initiating Application which was listed at short notice by the Registrar.  The father is not in Court today and [X] remains in his care, contrary to the Orders made on 9 August 2018.

7. The solicitor, Mr Williams, was told when he attended Suburb J Police Station that he would be provided with an event number, however, at the time of swearing his affidavit dated 12 September 2018 such event number has not yet been provided to him.  I am satisfied that a recovery order in all of the circumstances is in [X]’s best interest, particularly noting that the child has not attended school for almost 20 days. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 24 September 2019