Corcoran and Deeter and Anor - [2020] FCCA 3630

FEDERAL CIRCUIT COURT OF AUSTRALIA

CORCORAN & DEETER & ANOR

[2020] FCCA 3630

Catchwords:
FAMILY LAW – Parenting – interim care arrangements for a young child – child withheld by grandparent from parent – urgency based on unilateral disruption of established and well settled arrangements and imminent closure of borders in response to COVID 19 pandemic – interaction of child’s best interests and due process – recovery order issued.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZL, 69ZW

Federal Circuit Court Rules 2001 (Cth), r.4.03

Cases cited:

Allesch & Maunz [2000] HCA 40

Gordon & Gordon [2015] FamCA 616
Stowe & Stowe [1980] FamCA 92
Cowling [1998] FamCA 19
Griffiths (1981) FLC 91-064
Cilento (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239
Goode & Goode (2006) FLC 93-286
Marvel& Marvel (No.2) [2010] FamCAFC 101
Burton & Churchin & Anor [2013] FamCAFC 180

Aldridge & Keaton (2009) 42 Fam LR 369

Applicant:

MS CORCORAN

First Respondent:

MR DEETER

Second Respondent:

MS YOUNG

File Number:

LNC 147 of 2020

Judgment of:

Judge Harman

Hearing date:

27 March 2020

Delivered at:

Launceston

Delivered on:

27 March 2020

REPRESENTATION

Solicitors for the Applicant:

Ms F. McCracken of Grant Tucker

No appearance for the First Respondent

No appearance for the Second Respondent

ORDERS

Pending further Order, the child X born in 2016 shall live with her Mother, Ms Corcoran.
Pending further Order, Ms Corcoran shall have sole parental responsibility for X.
To: The Marshal
All Officers of the Australian Federal Police
All Officers of the State and Territory police forces
On the application of the Applicant, the Court orders that:
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 in 2016.
You are required to deliver the said child to the Applicant Mother Ms Corcoran at a place nominated by the Officer who recovers the child pursuant to this Order.
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 Ms Young again removes the said child from the Applicant mother pursuant to orders made herein on 27 March 2020, she may be arrested without a warrant.
This Order remains in force until 26 March 2021.
Adjourn the proceedings for further mention and directions to 11 May 2020 at 11:30am.
In the event that either Respondent (Mr Deeter and Ms Young) wishes to participate in these proceedings then they shall
(a)Attend at 11:30am on 11 May 2020 (noting the attendance will be by telephone or video link, to be advised by the Chambers of judge McGuire); and
(b)Each shall file and serve a Response, Affidavit sufficient to comply with

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 Corcoran and Deeter and Anor

Details

AGLC: Corcoran and Deeter and Anor [2020] FCCA 3630
Case: [2020] FCCA 3630
Decision Date: 27 March 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Harman presided over proceedings involving Ms Corcoran (the Applicant Mother) and Mr Deeter and Ms Young (the Respondents). The dispute concerned the welfare and location of a child, X, born in 2016. The court was required to make orders regarding the child's residence, parental responsibility, and recovery.

The central legal issues before the court were: firstly, where the child X should live and who should hold parental responsibility for her; and secondly, the appropriate measures to ensure the child's safety and recovery, including authorising law enforcement to locate and return the child to the Applicant Mother. The court also considered the conditions under which the Respondents could participate in future proceedings.

Judge Harman ordered that, pending further order, the child X shall live with Ms Corcoran and that Ms Corcoran shall have sole parental responsibility for X. The court further issued a recovery order, authorising and directing officers of the Australian Federal Police and State and Territory police forces, with necessary assistance and if required by force, to find and recover the child X and deliver her to Ms Corcoran. This order also authorised officers to stop and search vehicles, vessels, or aircraft, and to enter and search premises where there is reasonable cause to believe the child may be found. The court also stipulated that Ms Young may be arrested without a warrant if she again removes the child from Ms Corcoran. The proceedings were adjourned for further mention and directions, with specific requirements for the Respondents to file and serve responsive material if they wished to participate.

Orders

Orders of the court

Pending further Order, the child X born in 2016 shall live with her Mother, Ms Corcoran.

Pending further Order, Ms Corcoran shall have sole parental responsibility for X.

To: The Marshal

All Officers of the Australian Federal Police

All Officers of the State and Territory police forces

On the application of the Applicant, the Court orders that:

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 in 2016.

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

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 Ms Young again removes the said child from the Applicant mother pursuant to orders made herein on 27 March 2020, she may be arrested without a warrant.

This Order remains in force until 26 March 2021.

Adjourn the proceedings for further mention and directions to 11 May 2020 at 11:30am.

In the event that either Respondent (Mr Deeter and Ms Young) wishes to participate in these proceedings then they shall

(a) Attend at 11:30am on 11 May 2020 (noting the attendance will be by telephone or video link, to be advised by the Chambers of judge McGuire); and

(b) Each shall file and serve a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk not less than 7 days prior to the next Court event.

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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