Adamson and Adamson - [2013] FCCA 1228

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMSON & ADAMSON

[2013] FCCA 1228

Catchwords:
FAMILY LAW – Children – parenting orders – relocation – recovery order – best interests of the children – where mother unilaterally relocated the residence of the children whilst proceedings pending – application for recovery order refused.

Legislation:
Family Law Act 1975 (Cth), ss.67Q, 67V

Applicant:

MR ADAMSON

Respondent:

MS ADAMSON

File Number:

PAC 1461 of 2007

Judgment of:

Judge Scarlett

Hearing date:

12 August 2013

Date of Last Submission:

12 August 2013

Delivered at:

Sydney

Delivered on:

12 August 2013

REPRESENTATION

Solicitor for the Applicant:

Mr Bloomberg

Solicitors for the Applicant:

Blackman Legal

Solicitor for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Boyd Lawyers

ORDERS

The Application for a Recovery Order under s.67Q of the Family Law Act 1975 is dismissed.

UNTIL FURTHER ORDER

The Respondent Mother is restrained from removing the children [X] born [in] 1999 and [Y] born [in] 2001 from outside of the Sydney metropolitan area.
The Respondent Mother must return the children the children [X] and [Y] to an address within the Sydney metropolitan area within fourteen (14) days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

PAC 1461 of 2007

MR ADAMSON

Applicant

And

MS ADAMSON

Respondent

REASONS FOR JUDGMENT

The application before the Court is an Application in a Case seeking the issue of a recovery order under the provisions of section 67Q of the Family Law Act 1975 (Cth).
The application is brought by the Father and brought in circumstances where the Mother has chosen to relocate herself and the residence of the children to the [N] area from the [C] area.
The background to these proceedings is that the substantive application which was filed on 26^th April 2013 sought interim and final orders restraining the Respondent from changing the children’s place of residence to a location outside of a radius of five kilometres of their current residence at [C]. What has happened is that the Mother has now unilaterally relocated whilst these proceedings are on foot.
The application before the Court today is an application for a recovery order. That is an application for an order which is, to use the words of the Watson SJ of the Family Court, for the police “to go out and arrest the children” and remove them from the care of the parent with whom they are residing.
The Court should not issue a recovery order unless it is satisfied under section 67V of the Family Law Act that such an order would be in the best interests of the children concerned. The section says, and I quote:
In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In my view the application for a recovery order is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adamson and Adamson

Details

AGLC: ADAMSON & ADAMSON [2013] FCCA 1228
Case: [2013] FCCA 1228
Decision Date: 12 August 2013

CaseChat Overview and Summary

In the matter of *Adamson and Adamson*, heard by Judge Scarlett, the applicant father sought a recovery order under section 67Q of the *Family Law Act 1975* (Cth) concerning the parties' two children, [X] and [Y]. The dispute centred on the respondent mother's intention or action to remove the children from the Sydney metropolitan area.

The primary legal issue before the court was whether the criteria for making a recovery order under section 67Q of the *Family Law Act 1975* were met. This involved determining if the children had been, or were likely to be, taken or sent from Australia, or from a part of Australia, in contravention of the Act, and if such an order was in the best interests of the children.

Judge Scarlett dismissed the application for a recovery order. However, the court made orders restraining the respondent mother from removing the children from the Sydney metropolitan area and requiring her to return them to an address within that area within fourteen days. These orders were made "UNTIL FURTHER ORDER," indicating a temporary measure pending further consideration by the court.

Orders

Orders of the court

The Application for a Recovery Order under s.67Q of the Family Law Act 1975 is dismissed.

UNTIL FURTHER ORDER

The Respondent Mother is restrained from removing the children [X] born [in] 1999 and [Y] born [in] 2001 from outside of the Sydney metropolitan area.

The Respondent Mother must return the children the children [X] and [Y] to an address within the Sydney metropolitan area within fourteen (14) days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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