HEDLUND & HEDLUND (No.2) - [2020] FCCA 2781

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEDLUND & HEDLUND (No.2)

[2020] FCCA 2781

Catchwords:
FAMILY LAW – Parenting – Recovery Order – following final hearing – autistic child with intellectual disability and very challenging behavioural issues – child has history of assaulting mother and absconding to father’s house – final orders for child to live with mother and have no time and no communication with father – findings that child assaulting mother and absconding at father’s encouragement – child absconds to paternal grandparents house – paternal grandparents not parties and willing to facilitate child’s return to mother – mother does not wish to enter paternal grandparent’s property because of prior conflict – child will not leave paternal grandparents voluntarily – police will not remove child without Recovery Order – father appeared self-represented and, in effect, sought a stay of final orders and a return of the child to him – relied upon trauma implicit in recovery – no basis for stay – best interests of child to return to live with mother per final orders: Held: Stay refused and Recovery Order entered.

Legislation:

Family Law Act 1975 (Cth), ss.67Q, 69ZL, 60CA, 65AA, 60CC, 64B, 65D, 68B, 68C, Part VII, Division 5, Division 8, Subdivision C

Evidence Act 1995 (Cth), s.79

Cases cited:

Radar & Radar and Ors [2019] FamCAFC 227

Sheldon & Weir (No. 4) [2010] FamCA 1214

Applicant:

MS HEDLUND

Respondent:

MR HEDLUND

File Number:

SYC 2529 of 2017

Judgment of:

Judge B Smith

Hearing date:

7 October 2020

Date of Last Submission:

7 October 2020

Delivered at:

Sydney

Delivered on:

7 October 2020

REPRESENTATION

Solicitors for the Applicant:

Ms McDermott

Solicitors for the Respondent:

Mr Hedlund in person

ORDERS

The matter be heard on an urgent basis.
Leave be granted to serve short notice of this application.
Pursuant to section 67Q of the Family Law Act1975 a recovery order 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 the States and Territories of Australia requiring them to find and recover the child X born in 2011 and to return 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.

AND THE COURT NOTES THAT:

These orders were made on an urgent basis with brief ex tempore reasons delivered to underpin the Orders.
The Australian Federal Police and Officers of the States and Territories Police Forces are requested to give the applicant such assistance as she may reasonably require when the order is served on the respondent.

IT IS NOTED that publication of this judgment under the pseudonym Hedlund & Hedlund (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2529 of 2017

MS…

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 HEDLUND & HEDLUND (No.2)

Details

AGLC: HEDLUND & HEDLUND (No.2) [2020] FCCA 2781
Case: [2020] FCCA 2781
Decision Date: 7 October 2020

CaseChat Overview and Summary

This matter concerned an application for a recovery order in the Federal Circuit Court of Australia. The applicant mother sought the return of her child, X, who had absconded to the paternal grandparents' residence. The child, who has autism, an intellectual disability, and significant behavioural challenges, had a history of assaulting the mother and absconding to the father's house. Final orders had previously been made for the child to live with the mother with no time or communication with the father, following findings that the child's assaults and absconding were encouraged by the father. The paternal grandparents were not parties to the proceedings but were willing to facilitate the child's return to the mother, though the mother was reluctant to attend their property due to prior conflict. The child refused to leave the paternal grandparents' home voluntarily, and the police indicated they would not remove the child without a recovery order. The father, appearing self-represented, sought a stay of the final orders and the child's return to him, arguing the recovery process would cause trauma.

The primary legal issue before the Court was whether to grant a recovery order for the child X. This involved determining whether the circumstances warranted the extraordinary measure of a recovery order, particularly in light of the existing final parenting orders and the father's application for a stay. The Court also had to consider the best interests of the child in deciding whether to grant the recovery order and refuse the stay.

The Court reasoned that there was no basis to grant a stay of the final orders, as the father's application lacked merit. The Court found that the best interests of the child required the child to return to live with the mother, as stipulated in the final orders. Consequently, the Court refused the father's application for a stay and issued a recovery order pursuant to section 67Q of the *Family Law Act 1975*. The recovery order directed the Marshal of the Federal Circuit Court, officers of the Australian Federal Police, and officers of State and Territory Police Forces to find and recover the child and return the child to the applicant mother. The Court noted that these orders were made on an urgent basis with brief ex tempore reasons.

Orders

Orders of the court

The matter be heard on an urgent basis.

Leave be granted to serve short notice of this application.

Pursuant to section 67Q of the Family Law Act 1975 a recovery order 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 the States and Territories of Australia requiring them to find and recover the child X born in 2011 and to return 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.

AND THE COURT NOTES THAT:

These orders were made on an urgent basis with brief ex tempore reasons delivered to underpin the Orders.

The Australian Federal Police and Officers of the States and Territories Police Forces are requested to give the applicant such assistance as she may reasonably require when the order is served on the respondent.

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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