J and B - [2010] FamCA 1143

FAMILY COURT OF AUSTRALIA

J & B

[2010] FamCA 1143

FAMILY LAW – CHILDREN – With whom children live

APPLICANT:

Mr J

RESPONDENT:

Ms B

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

9299

2010

DATE DELIVERED:

14 October 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

14 October 2010

REPRESENTATION

THE APPLICANT:

Appeared in person

THE RESPONDENT:

Appeared in person

Orders

The children WJ and WB both born … June 1998 be returned to the care of the Father forthwith.
The said children be brought to the Child Dispute Services, Level 3, Commonwealth Law Courts, Cnr North Quay and Tank Streets, Brisbane by no later than 3:00 pm today for the purposes of handover to the Father.
Should the children fail to be presented at the Family Court of Australia pursuant to Order (2) herein, a Warrant will be issued to have the children brought to the Court between 8:45 am and 4:30 pm from Monday to Friday.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9299 of 2010

MR J

Applicant

And

MS B

Respondent

REASONS FOR JUDGMENT

This is an exceptionally difficult case. As I’ve already indicated, it has taken up the Court’s time for a considerable period. It has been before four judges, I think, of this Court, excluding the Full Court; they being Jerrard, May, Laurie JJ and myself. As far as I’m concerned some orders were made in the original part of this case in relation to findings which were made by judges who are no longer on the Court, subsequent judges hearing the matter being bound by such decisions or otherwise. Eventually it came before me and for the period from 14 to 18 January 2008 to 4 to 5 February 2008 it was before me.
I gave my decision on 14 February 2008. It was a most difficult case and I have referred to my reasons for judgment in order to refresh my memory as to the circumstances surrounding it. The children, twins, on the material before me, who are now aged 12 years and about four or five months have refused to return to their father, who resides in northern Queensland and as a result thereof the father brought this matter on as a matter of urgency in an endeavour to have the children returned to him in accordance with the order of myself. I removed the children from the mother, in whose possession they had been for a considerable time and if necessary – this was back in 2008, and if necessary I refer to and incorporate in these my brief reasons my reasons for judgment of 14 February 2008. May I say in passing, to me the mother does not have a good particularly track record in relation to endeavouring to alienate the affections of the children…

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 J and B

Details

AGLC: J and B [2010] FamCA 1143
Case: [2010] FamCA 1143
Decision Date: 14 October 2010

CaseChat Overview and Summary

In the matter of *J and B*, Bell J of the Family Court of Australia considered an application concerning the welfare of two children, WJ and WB. The dispute centred on the immediate care and control of the children, with the court ultimately making orders for their return to the Father.

The central legal issue before the court was the determination of the children's best interests in circumstances requiring urgent intervention. This involved assessing the appropriate custodial arrangements and ensuring the children's physical presence before the court for the purpose of handover.

Bell J ordered that the children WJ and WB be returned to the care of the Father forthwith. The court further directed that the children be presented at the Child Dispute Services in Brisbane by 3:00 pm on the day of the order for handover to the Father. In the event of non-compliance with this order, the court indicated that a warrant would be issued for the children's apprehension and presentation to the court.

Orders

Orders of the court

The children WJ and WB both born … June 1998 be returned to the care of the Father forthwith.

The said children be brought to the Child Dispute Services, Level 3, Commonwealth Law Courts, Cnr North Quay and Tank Streets, Brisbane by no later than 3:00 pm today for the purposes of handover to the Father.

Should the children fail to be presented at the Family Court of Australia pursuant to Order (2) herein, a Warrant will be issued to have the children brought to the Court between 8:45 am and 4:30 pm from Monday to Friday.

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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