Emmett and Emmett - [2007] FamCA 133

FAMILY COURT OF AUSTRALIA

EMMETT & EMMETT

[2007] FamCA 133

FAMILY LAW - CHILDREN – Recovery Order – Children’s resistance

APPLICANT:

Mr Emmett

RESPONDENT:

Mrs Emmett

FILE NUMBER:

TVF

2766

2000

DATE DELIVERED:

6 February 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

6 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Bowrey, Wilson Ryan Grose

SOLICITOR FOR THE RESPONDENT:

Ms Harrington, Harrington Family Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Associates

FRIEND OF THE COURT:

Mr Carter, Carter Naughton Rice

Orders

IT IS ORDERED UNTIL FURTHER ORDER

That the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, live with the Father.

IT IS FURTHER ORDERED

That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

That such persons are authorised and directed to find and recover the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, and for that purpose, with such assistance as they 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 children may be found.

That the said children are to be delivered to the Father at H, in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

That the Recovery Order remains in force for a period of six months.

IT IS ORDERED UNTIL FURTHER ORDER

That the Mother have such supervised contact at Relationships Australia as can be agreed to between the parties and accommodated by Relationships Australia, or such further or other contact as may be mutually agreed to between the parties.

IT IS FURTHER ORDERED

That pursuant to Section 91B of the Family Law Act 1975, the Director-General, Department of Child Safety, is requested to intervene in these proceedings in relation to the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994.

That the Registry Manager is to notify the Director-General, Department of Child Safety, of this order.

That upon request from the said Director-General, Department of Child Safety, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General, Department of Child Safety, and copying of any part of it to enable consideration of the request to intervene in the proceedings.

That the matter be listed for final hearing in Townsville for nine (9) days commencing 12 June 2007.

IT IS NOTED
(a)That the matter is listed for interim determination on 29 March 2007 and, given the allocation of final hearing dates on 12 June 2007 to determine the issue of residence, it…

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 Emmett and Emmett

Details

AGLC: Emmett and Emmett [2007] FamCA 133
Case: [2007] FamCA 133
Decision Date: 6 February 2007

CaseChat Overview and Summary

In *Emmett and Emmett*, heard by Jordan J, the proceedings concerned the welfare and living arrangements of three children, J, R, and A. The dispute involved orders sought by the Father regarding the children's residence and contact arrangements with the Mother, as well as the intervention of the Director-General of the Department of Child Safety.

The court was required to determine the primary residence of the children, the terms of contact for the Mother, and whether to issue a recovery order for the children. Additionally, the court considered the necessity of requesting the Director-General of the Department of Child Safety to intervene in the proceedings.

His Honour ordered that the children live with the Father until further order. A recovery order was issued, authorising and directing law enforcement officers to locate and recover the children, with powers to stop, search, and enter premises if there was reasonable cause to believe the children might be found. The recovery order was to remain in force for six months. The Mother was granted supervised contact at Relationships Australia, or such other contact as mutually agreed. Pursuant to section 91B of the *Family Law Act 1975*, the Director-General of the Department of Child Safety was requested to intervene, and the Registry Manager was directed to notify the Director-General and permit inspection of the court file. The matter was listed for a final hearing.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

That the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, live with the Father.

IT IS FURTHER ORDERED

That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

That such persons are authorised and directed to find and recover the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, and for that purpose, with such assistance as they 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 children may be found.

That the said children are to be delivered to the Father at H, in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

That the Recovery Order remains in force for a period of six months.

IT IS ORDERED UNTIL FURTHER ORDER

That the Mother have such supervised contact at Relationships Australia as can be agreed to between the parties and accommodated by Relationships Australia, or such further or other contact as may be mutually agreed to between the parties.

IT IS FURTHER ORDERED

That pursuant to Section 91B of the Family Law Act 1975, the Director-General, Department of Child Safety, is requested to intervene in these proceedings in relation to the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994.

That the Registry Manager is to notify the Director-General, Department of Child Safety, of this order.

That upon request from the said Director-General, Department of Child Safety, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General, Department of Child Safety, and copying of any part of it to enable consideration of the request to intervene in the proceedings.

10.

That the matter be listed for final hearing in Townsville for nine (9) days commencing 12 June 2007.

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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