CHIAO & WEN - [2014] FamCA 1

FAMILY COURT OF AUSTRALIA

CHIAO & WEN

[2014] FamCA 1

FAMILY LAW – CHILDREN – Recovery Order – Commonwealth Information Order – father sought orders following repeated non attendances by mother – location of mother and child unknown – family reports indicate child reluctant to spend time with father – child has not seen father for two years – best interests of the child – orders granted.

FAMILY LAW – CHILDREN – Interim Orders – time child spends with – best interests of the child – upon recovery child to spend time with father during the period of adjournment.

Family Law Act 1975 (Cth) s 67N, 67P, 67U, 67V, 68

Hall & Hall (1979) FLC 90-713
Harris & Harris (1977) FLC 90-276
Wood & Wood (1976) FLC 90-098

APPLICANT:

Mr Chiao

RESPONDENT:

Ms Wen

INDEPENDENT CHILDREN’S LAWYER:

SE Lawyers

FILE NUMBER:

ADC

3665

2011

DATE DELIVERED:

7 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hemsley

SOLICITOR FOR THE APPLICANT:

Paul G Doube

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dibden

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SE Lawyers

Orders

Pursuant to Section 67N of the Family Law Act 1975 (Cth) as amended Centrelink do provide the Registrar of this Court with information that is contained in or comes into the records of the said Department about the location of the respondent Ms Wen and the child C born … April 2002.
That pursuant to Section 67P(1)(d) of the Family Law Act 1975 (Cth) as amended leave be granted to disclose the information provided to the Registrar of this Honourable Court to the solicitors for the applicant father and to a process server engaged by him to effect service of documents on the respondent mother.
That upon receipt of the information as to the whereabouts of the said child and the said mother Ms Wen, Paul Doube Lawyers be restrained from divulging such information to the applicant father.
That upon receipt of the location of the respondent, the applicant’s solicitors forthwith attempt to serve the respondent mother with the application in a case and affidavit filed 12 December 2013, this order and a copy of the reasons for judgment.
That pursuant to Section 67U of the Act that a Recovery Order do issue authorising the taking possession of the said child C born … April 2012 and the delivery of such child to the applicant father Mr Chiao forthwith at … B Street, Suburb D, South Australia or such other place as the applicant Mr Chiao and the person effecting recovery agree to be appropriate.
The said child spend time with the father during the period of the adjournment.
That further consideration be adjourned to Tuesday 4 February 2014 at 9.15am, with liberty to vacate and relist if service has not been effected by 3 February 2014.

IT IS NOTED that publication of this judgment…

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 CHIAO & WEN

Details

AGLC: CHIAO & WEN [2014] FamCA 1
Case: [2014] FamCA 1
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr. Chiao (the father) for a recovery order, a Commonwealth information order, and interim parenting orders concerning his child, C. The respondent, Ms. Wen (the mother), and the child's location were unknown, and the mother had repeatedly failed to appear in court proceedings. The father sought these orders due to the mother's repeated non-attendances and the child's prolonged absence from his life, having not seen the father for two years.

The court was required to determine whether to grant a recovery order for the child, considering the paramountcy of the child's best interests. This involved assessing the impact of the mother's non-compliance and the child's expressed reluctance to spend time with the father, as indicated in family reports. The court also had to consider the legal principles governing the disclosure of location information and the issuance of recovery orders under the *Family Law Act 1975* (Cth).

Justice Berman reasoned that while family reports indicated the child's reluctance to see the father and concerns about the mother's influence, a failure to act would perpetuate delays and further estrange the child from her father. The court noted that the Independent Children's Lawyer did not oppose the recovery order, acknowledging the need for decisive action to facilitate a meaningful relationship with both parents. Applying the principles from *Hall & Hall* and *Wood & Wood*, the court found that family reports are valuable but not determinative, and the judge retains responsibility for the ultimate decision. The court concluded that granting the recovery order, despite the potential distress to the child, was in her best interests to prevent further estrangement and advance the proceedings.

The court made orders pursuant to section 67N of the *Family Law Act 1975* (Cth) for Centrelink to provide information regarding the location of the mother and child to the court registrar. Leave was granted to disclose this information to the father's solicitors and a process server, with a restraint on the solicitors divulging the information directly to the father. A recovery order was issued authorising the taking possession of the child and delivery to the father. Interim orders were made for the child to spend time with the father during the adjournment, and further consideration of the matter was adjourned.

Orders