Earle and Earle - [2020] FamCA 272

FAMILY COURT OF AUSTRALIA

EARLE & EARLE

[2020] FamCA 272

FAMILY LAW – CHILDREN – Recovery Order – Where interim orders previously made that children live with mother and spend substantial and significant time with father – Where father withheld children from mother on the basis that she poses a serious risk of harm due to her mental health and the nature of her allegations made against him – Where mother seeks a Recovery Order as she contends she has been the primary carer of the children – Where in response father seeks new interim parenting orders – Where father also alleges members of the maternal family involved in the care of the children pose a risk of serious harm based on similar mental health concerns as mother and involvement in allegations made against him – Where expert previously opined that mother’s mental health is not a concern and immediate changes to children’s circumstances not recommended – Where weight attached to expert opinion and updated report ordered – Where Recovery Order made as sought by mother and appropriate that further restraints on mother including in relation to members of maternal family are made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 67U, 67V

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Earle

RESPONDENT:

Mr Earle

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

2016

2018

DATE DELIVERED:

23 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Lioumis

SOLICITOR FOR THE RESPONDENT:

Coleman & Greig Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

That the father return the children X born … 2017 and Y born … 2016 (“the children”) to the mother’s home by 4.00 pm today, or as otherwise agreed between the parties prior to 4.00 pm.
That the father’s time with the children is suspended from today until 1 May 2020.
That Order 1 is conditional upon the mother’s cousin Mr B immediately vacating the mother’s household.
That in the event the father fails or refuses to cause the children to be delivered to the mother in accordance with Order 1, a Recovery Order pursuant to s 67U of the Family Law Act 1975 be issued directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia authorising and directing them to find and recover the children and return them to the mother and for that purpose to stop and search any vehicle, vessel or aircraft…

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 Earle and Earle

Details

AGLC: Earle and Earle [2020] FamCA 272
Case: [2020] FamCA 272
Decision Date: 23 April 2020

CaseChat Overview and Summary

In *Earle and Earle*, Hannam J of the Family Court of Australia was required to make orders concerning the welfare and living arrangements of two children, X and Y. The proceedings involved the parents, the father and the mother, and the Independent Children's Lawyer. The immediate dispute before the court concerned the return of the children to the mother's care and the father's future contact with them.

The court was tasked with determining several critical issues. These included whether the children should be returned to the mother's home, the extent to which the father's time with the children should be suspended, and the conditions under which such return and suspension would occur. Furthermore, the court had to consider the implications of other individuals residing in or having contact with the mother's household, specifically her cousin Mr B and her brother Mr C, on the children's welfare. The court also needed to address ongoing arrangements for the children's medical care, childcare, and NDIS services, as well as the process for obtaining updated expert reports.

Hannam J reasoned that the immediate return of the children to the mother's home was appropriate, subject to a crucial condition: that the mother's cousin, Mr B, immediately vacate the mother's household. The father's time with the children was suspended until a specified date. The court also made orders restraining the mother from allowing Mr B or her brother Mr C to play a role in the children's care. Further orders were made to ensure the children received necessary medical attention, attended childcare, and received NDIS services, with specific provisions for medical emergencies and the COVID-19 crisis. The court also directed the Independent Children's Lawyer to facilitate the obtaining of an updated expert report.

Orders

Orders of the court

That the father return the children X born … 2017 and Y born … 2016 (“the children”) to the mother’s home by 4.00 pm today, or as otherwise agreed between the parties prior to 4.00 pm.

That the father’s time with the children is suspended from today until 1 May 2020.

That Order 1 is conditional upon the mother’s cousin Mr B immediately vacating the mother’s household.

That in the event the father fails or refuses to cause the children to be delivered to the mother in accordance with Order 1, a Recovery Order pursuant to s 67U of the Family Law Act 1975 be issued directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia authorising and directing them to find and recover the children and return them to the mother 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 children may be found.

That pursuant to 67Y of the Family Law Act 1975 the mother notify the Court as soon as practicable the circumstances and time that the children are returned to her care.

That the father, or any person acting on his behalf is prevented from withholding the children further from the mother and that he otherwise comply with Orders dated 19 March 2019 and 10 April 2019.

That the mother is restrained from allowing her cousin Mr B to reside in her household or to play any role in the care of the children.

That the mother is restrained from allowing her brother Mr C to play any role in caring for the children.

That the parties are restrained from presenting the children to any general practitioner other than one agreed upon by them, noting that if that nominated general practitioner is unavailable the children are to be presented to the next available general practitioner from the same medical practice as the nominated practitioner.

10.

That the children are to live with or spend time with each parent as specified in the current court orders even if the children or one of them are unwell, and it is the responsibility of the parent with whom the child is living or spending time to obtain medical attention if required. If there is a medical emergency and one of the children requires immediate presentation at a hospital then the parent caring for the child at that time is to present that child to hospital and immediately notify the other parent.

11.

That the mother take is to take all steps to ensure that the children are enrolled in a child care centre as agreed between the parties and is to facilitate the children attending such child care centre subject to restrictions in place as a result of the COVID-19 crisis.

12.

That the mother is to take all steps necessary to ensure that Y receives all services recommended for him by his NDIS funding scheme consultant.

13.

That the Independent Children’s Lawyer forward to chambers as soon as practicable orders to be made with the consent of the parties in relation to obtaining urgently an updated report from the court appointed expert.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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