Earles and Highsmith (No 2) - [2012] FamCA 947

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH (NO 2)

[2012] FamCA 947

FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to stay substantive Orders which in effect change the residence of the child to live with the father - Where appeal filed by mother against those substantive Orders – Where child missing since substantive Orders – Where the mother gives evidence to the Court that she believes the child is with the maternal grandmother but is not aware of their whereabouts – Where the status quo could not be restored in the circumstances in the event the stay was granted – Application for stay dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Clemett & Clemett (1981) FLC 91-013
CSN & JBN (1998) FLC 92-833; 24 Fam LR 174; [1998] FamCA 1766

APPLICANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

FILE NUMBER:

PAC

5328

2008

DATE DELIVERED:

17 October 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

17 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr de Robillard

SOLICITOR FOR THE APPLICANT:

Mother in person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Father in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman
Legal Aid Nsw Parramatta Family Law

Orders

That the mother is to write down her mobile numbers, to be held by the Court for the purpose of assisting in the location of the subject child. Such numbers are not to be provided to the father.
That the mother’s mobile phone (2^nd number) is to be handed to Mr Kenny to inspect the call log of that phone.

Later

That the Application for Stay filed by the mother on 10 October 2012 is hereby dismissed.
That I reserve the applicant and the respondent’s costs in relation to the Stay Application. That issue is to be dealt with on the next occasion that matter is before the Court.
That the mother’s Application filed 16 October 2012 to seek to discharge the Independent Children’s Lawyer is stood over to 2.15 pm on Tuesday 13 November 2012.
That the father’s Application filed 12 October 2012 for location and the father’s costs application made today is stood over to 2.15 pm on Tuesday 30 October 2012.
That I reserve the costs of the Independent Children’s Lawyer and the mother today in respect of the application for discharge of the Independent Children’s Lawyer including the costs of the Independent Children’s Lawyer of this day.
That the applicant mother shall file and serve all material upon which she would seek to rely in relation to the application to discharge the Independent Children’s Lawyer by close of business on Wednesday 24 October 2012. The Independent Children’s Lawyer shall file and serve any material upon which she seeks to rely by close of business on Thursday 8 November 2012.
That the mother’s mobile telephone, marked MFI1 in today’s proceedings,…

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 Earles and Highsmith (No 2)

Details

AGLC: Earles and Highsmith (No 2) [2012] FamCA 947
Case: [2012] FamCA 947
Decision Date: 17 October 2012

CaseChat Overview and Summary

In *Earles and Highsmith (No 2)*, Collier J of the Federal Circuit Court of Australia considered applications made by both the mother and the father concerning the location of a subject child and related matters. The proceedings involved the mother's applications to stay proceedings and discharge an Independent Children's Lawyer, as well as the father's application for the location of the child.

The court was required to determine the disposition of the mother's application for a stay, the father's application for the location of the child, and the mother's application to discharge the Independent Children's Lawyer. Additionally, the court had to consider applications for costs and the appropriate handling of information related to the child's location.

Collier J dismissed the mother's application for a stay. The court ordered that the mother provide her mobile numbers to the Court, not to be disclosed to the father, for the purpose of locating the child. The mother's mobile phone was to be inspected by Mr Kenny for its call log, and subsequently provided to the Australian Federal Police for inspection to aid in the child's recovery. The court also made directions regarding the filing of material for the application to discharge the Independent Children's Lawyer, and reserved costs for various applications.

Orders

Orders of the court

That the mother is to write down her mobile numbers, to be held by the Court for the purpose of assisting in the location of the subject child. Such numbers are not to be provided to the father.

That the mother’s mobile phone (2nd number) is to be handed to Mr Kenny to inspect the call log of that phone.

Later

That the Application for Stay filed by the mother on 10 October 2012 is hereby dismissed.

That I reserve the applicant and the respondent’s costs in relation to the Stay Application. That issue is to be dealt with on the next occasion that matter is before the Court.

That the mother’s Application filed 16 October 2012 to seek to discharge the Independent Children’s Lawyer is stood over to 2.15 pm on Tuesday 13 November 2012.

That the father’s Application filed 12 October 2012 for location and the father’s costs application made today is stood over to 2.15 pm on Tuesday 30 October 2012.

That I reserve the costs of the Independent Children’s Lawyer and the mother today in respect of the application for discharge of the Independent Children’s Lawyer including the costs of the Independent Children’s Lawyer of this day.

That the applicant mother shall file and serve all material upon which she would seek to rely in relation to the application to discharge the Independent Children’s Lawyer by close of business on Wednesday 24 October 2012. The Independent Children’s Lawyer shall file and serve any material upon which she seeks to rely by close of business on Thursday 8 November 2012.

That the mother’s mobile telephone, marked MFI1 in today’s proceedings, shall be provided to Mr De Robillard for him to take that phone directly to the Australian Federal Police. The Australian Federal Police shall be permitted to inspect that phone seeking to retrieve any information that may assist in the recovery of the subject child. Such telephone is not to be provided to the mother alone and shall be retained by the Australian Federal Police for forty-eight (48) hours, and thereafter be returned to Mr De Robillard.

10.

That leave is granted to Mr Kenny to transmit to the Australian Federal Police, not in the hearing of the father, the telephone numbers provided to the Court today by the mother.

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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