DICKENS & DICKENS - [2014] FamCA 1226

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2014] FamCA 1226

FAMILY LAW – CHILDREN – Recovery order – Where the mother makes an application for an urgent recovery order on an ex parte basis – Where the father alleged that the child said that he had been hit by the mother’s spouse – Where police were involved and did not express concern about the allegation made by the child - Consideration of the best interests of the child – Order made for the return of the child to the mother.

Family Law Act 1975 (Cth) – s 67Q

APPLICANT:

Ms Dickens

RESPONDENT:

Mr Dickens

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

18 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

18 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Adams, solicitor of Hamish Cumming Family Lawyers

FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan, solicitor of Moylan Family Lawyers

Orders

That the Court notes that the father has not been served with the application and affidavit in support and therefore has not had any opportunity to present any evidence in reply.
That the Court notes that the Court considers this matter to be one where some urgent action is required and for this reason these orders are made ex parte.
That orders are made in accordance with paragraphs 1, 2, 3 and 5 of the mother’s Application in a Case filed on 18 March 2014 as set out hereunder:-
1.Pursuant to Section 67Q of the Family Law Act 1975 a recovery Order issue directed to the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police Force and to all Officers of all the Police Forces of all the States and Territories of the Commonwealth of Australia requiring them to:-
a.To find and recover the child C born … 2003 (presently aged 10 years), hereinafter referred to as “C”;
b.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 C may be found; and
c.To deliver C to the Mother at such place as the Mother and the person effecting the recovery agree to be appropriate.
2.That service of the application in respect to Order 1 above be dispensed with.
3. That Order 1 herein be made on an urgent and ex parte basis.
…
5. That Order 4 of the Orders dated 7 June 2013 be suspended.
That all parties are given leave to re-list these proceedings on short notice by arrangement with Johnston J’s Associate
That these proceedings are otherwise adjourned to 10:00 am on 26 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF…

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.

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Details

AGLC: DICKENS & DICKENS [2014] FamCA 1226
Case: [2014] FamCA 1226
Decision Date: 18 March 2014

CaseChat Overview and Summary

In *Dickens & Dickens*, heard by Johnston J, the mother sought urgent orders concerning the recovery of the child, C. The father had not been served with the application and affidavit, and therefore had not had an opportunity to present a reply. The court considered the matter to be one requiring urgent action, leading to the orders being made ex parte.

The primary legal issue before the court was whether to grant a recovery order for the child C, pursuant to section 67Q of the *Family Law Act 1975*. This involved determining whether the circumstances warranted making such an order on an urgent and ex parte basis, and whether service of the application should be dispensed with. The court also considered the suspension of a prior order dated 7 June 2013.

Johnston J reasoned that urgent action was required and, in light of the father's non-service and the urgency, made orders ex parte. The court issued a recovery order directed to various law enforcement officers, authorising them to find and recover the child C, stop and search vehicles, vessels, aircraft, and enter and search premises where C might be found, and to deliver C to the mother. The court also dispensed with service of the application for the recovery order and suspended a previous order. The proceedings were adjourned for further consideration.

Orders

Orders of the court

That the Court notes that the father has not been served with the application and affidavit in support and therefore has not had any opportunity to present any evidence in reply.

That the Court notes that the Court considers this matter to be one where some urgent action is required and for this reason these orders are made ex parte.

That orders are made in accordance with paragraphs 1, 2, 3 and 5 of the mother’s Application in a Case filed on 18 March 2014 as set out hereunder:-

1. Pursuant to Section 67Q of the Family Law Act 1975 a recovery Order issue directed to the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police Force and to all Officers of all the Police Forces of all the States and Territories of the Commonwealth of Australia requiring them to:-

a. To find and recover the child C born … 2003 (presently aged 10 years), hereinafter referred to as “C”;

b. 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 C may be found; and

c. To deliver C to the Mother at such place as the Mother and the person effecting the recovery agree to be appropriate.

2. That service of the application in respect to Order 1 above be dispensed with.

3. That Order 1 herein be made on an urgent and ex parte basis.

…

5. That Order 4 of the Orders dated 7 June 2013 be suspended.

That all parties are given leave to re-list these proceedings on short notice by arrangement with Johnston J’s Associate

That these proceedings are otherwise adjourned to 10:00 am on 26 March 2014.

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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