Duckett & Robinson - [2015] FCCA 997

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUCKETT & ROBINSON

[2015] FCCA 997

Catchwords:
FAMILY LAW – Children – parenting orders – recovery order – warrant for arrest – where mother left the jurisdiction taking the child with her.

FAMILY LAW – Children – parentage – declaration as to parentage – alteration of record of child’s birth to include Applicant as father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65Q, 67Q, 69VA

Births, Deaths and Marriages Registration Act 1995 (NSW), s.19

Applicant:

MR DUCKETT

Respondent:

MS ROBINSON

File Number:

SYC 5776 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

8-9 April 2015

Date of Last Submission:

9 April 2015

Delivered at:

Sydney

Delivered on:

9 April 2015

REPRESENTATION

Counsel for the Applicant:

Ms Murphy

Solicitors for the Applicant:

Derham Houston Lawyers

Counsel for the Respondent:

Ms Gibbons (leave to withdraw)

Solicitors for the Respondent:

Maveston Legal

Counsel for the Independent Children's Lawyer:

Ms Falloon

Independent Children's Lawyer:

Peter Baker Solicitor

ORDERS

All earlier Parenting Orders are discharged.
The child X born (omitted) 2011 is to live with the Applicant Father who is to have sole parental responsibility for the child.
As provided by section 67Q of the Family Law Act 1975 a Recovery Order is to issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia requiring them to find and recover the child X born (omitted) 2011 and to deliver the said child to the Applicant and for that purpose 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.
As provided by section 65Q of the Family Law Act 1975 a Warrant is to issue authorising and directing the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth Australia to arrest MS ROBINSON born (omitted) 1970 and bring her before the Court.
In accordance with section 69VA of the Family Law Act 1975 it is declared that the Applicant MR DUCKETT born (omitted) 1970 is the Father of the child X born (omitted) 2011.
The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the Applicant MR DUCKETT born (omitted) 1970 in the Register as the Father of the child X born (omitted) 2011.
The Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5776 of 2013

MR DUCKETT

Applicant

And

MS ROBINSON

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for parenting orders by…

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 Duckett & Robinson

Details

AGLC: DUCKETT & ROBINSON [2015] FCCA 997
Case: [2015] FCCA 997
Decision Date: 9 April 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Scarlett considered a dispute between Mr Duckett (the Applicant Father) and Ms Robinson (the Mother) concerning their child, X. The core of the dispute involved the Mother leaving the jurisdiction with the child, necessitating orders for the child's recovery and the parentage of the child.

The court was required to determine several key legal issues. These included whether to discharge existing parenting orders, with whom the child should live and who should have parental responsibility, and whether to issue a recovery order for the child and a warrant for the arrest of the Mother. Additionally, the court needed to make a declaration as to the parentage of the child and direct the alteration of the child's birth record to reflect the Applicant as the father.

Judge Scarlett reasoned that the circumstances warranted significant intervention to ensure the child's welfare and safety. The court discharged all earlier parenting orders and ordered that the child X live with the Applicant Father, who was granted sole parental responsibility. In accordance with section 67Q of the *Family Law Act 1975*, a recovery order was issued, directing law enforcement agencies to find and deliver the child to the Applicant. Furthermore, pursuant to section 65Q of the *Family Law Act 1975*, a warrant was issued for the arrest of Ms Robinson, requiring her to be brought before the Court. The court also declared, under section 69VA of the *Family Law Act 1975*, that Mr Duckett is the father of the child and ordered the Registrar of Births, Deaths and Marriages in New South Wales to register him as such. The Independent Children’s Lawyer was discharged.

Orders

Orders of the court

All earlier Parenting Orders are discharged.

The child X born (omitted) 2011 is to live with the Applicant Father who is to have sole parental responsibility for the child.

As provided by section 67Q of the Family Law Act 1975 a Recovery Order is to issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia requiring them to find and recover the child X born (omitted) 2011 and to deliver the said child to the Applicant and for that purpose 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.

As provided by section 65Q of the Family Law Act 1975 a Warrant is to issue authorising and directing the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth Australia to arrest MS ROBINSON born (omitted) 1970 and bring her before the Court.

In accordance with section 69VA of the Family Law Act 1975 it is declared that the Applicant MR DUCKETT born (omitted) 1970 is the Father of the child X born (omitted) 2011.

The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is ordered to register the name of the Applicant MR DUCKETT born (omitted) 1970 in the Register as the Father of the child X born (omitted) 2011.

The Independent Children’s Lawyer is discharged.

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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