JAROS & CALDEN - [2019] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAROS & CALDEN

[2019] FCCA 1221

Catchwords:
FAMILY LAW – Parenting – interim application for recovery of children – where father withholds children – where interim orders in place for week-about time – where father seeks order for suspension of mother’s time – where father’s withholding appears opportunistic and tactical – order for delivery up to mother – brief suspension of father’s time.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

SS v AH [2010] FamCAFC 13

Applicant:

MS JAROS

Respondent:

MR CALDEN

File Number:

ADC 1152 of 2018

Judgment of:

Judge Heffernan

Hearing date:

4 April 2019

Date of Last Submission:

4 April 2019

Delivered at:

Adelaide

Delivered on:

8 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms M Dickson

Solicitors for the Applicant:

Resolve Divorce Lawyers

Counsel for the Respondent:

Ms R Read

Solicitors for the Respondent:

Adelaide Hills Legal

ORDERS

The children, X born in 2009 and Y born in 2009, are to return to the mother’s care by the mother collecting the children from their school at the completion of school today.
In the event that for whatever reason, the children are not at school at the time the mother collects them, then pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2009 and Y born in 2009; and
(b)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; and
(c)to deliver the children to the mother MS JAROS at such a place as the mother and the person effecting such recovery agree to be appropriate.
Without any admission on the part of the father for the need for same, the father is restrained and an injunction is granted restraining him from contacting the children at school today and/or attending upon the school today.
Upon noting that the interim orders of 5 December 2018 will continue to have effect, notwithstanding those orders, the father’s time is suspended for a period of one week for the children to settle into the mother’s care and to cater for the unilateral decision of the father removing the children from the mother’s care and the father’s time is to re-commence on 29 April 2019.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2009 and Y born in 2009 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia…

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.

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Details

Case: [2019] FCCA 1221
Decision Date: 8 April 2019

CaseChat Overview and Summary

In the matter of JAROS & CALDEN, Judge Heffernan of the Family Court of Australia considered an interim application concerning the recovery of two children. The dispute arose from the father withholding the children from the mother, contrary to existing week-about interim orders. The father sought an order to suspend the mother's time with the children, but the court found his actions to be opportunistic and tactical.

The court was required to determine whether to issue a recovery order for the children and how to address the father's withholding of the children in light of the existing interim parenting orders. The court also considered the need for an Independent Children's Lawyer and the provision of psychological support for one of the children.

Judge Heffernan reasoned that the father's conduct warranted the immediate return of the children to the mother's care. The court ordered the children to be collected from school by the mother, and in the event they were not at school, a recovery order was to issue authorising law enforcement to find and recover the children and deliver them to the mother. The father was also restrained from attending the school. While the interim orders were to continue, the father's time was suspended for one week to allow the children to settle with the mother, with his time to recommence thereafter. An Independent Children's Lawyer was appointed, and the mother was encouraged to facilitate counselling for one child, with both parties to agree on a psychologist for therapy for the children.

Orders

Orders of the court

The children, X born in 2009 and Y born in 2009, are to return to the mother’s care by the mother collecting the children from their school at the completion of school today.

In the event that for whatever reason, the children are not at school at the time the mother collects them, then pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(a) to find and recover the children X born in 2009 and Y born in 2009; and

(b) 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; and

(c) to deliver the children to the mother MS JAROS at such a place as the mother and the person effecting such recovery agree to be appropriate.

Without any admission on the part of the father for the need for same, the father is restrained and an injunction is granted restraining him from contacting the children at school today and/or attending upon the school today.

Upon noting that the interim orders of 5 December 2018 will continue to have effect, notwithstanding those orders, the father’s time is suspended for a period of one week for the children to settle into the mother’s care and to cater for the unilateral decision of the father removing the children from the mother’s care and the father’s time is to re-commence on 29 April 2019.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2009 and Y born in 2009 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within 7 days of the date hereof and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.

The mother is encouraged to promote the child X engaging with the school counsellor to discuss her present situation.

The parties are to do all things necessary forthwith to agree upon an independent psychologist for the purpose of providing counselling or therapy for X and both parties are at liberty to be involved in the process of consultation with the psychologist and receive information as to any diagnosis or therapy that is advised.

The parties have leave to call the matter on in the event that a psychologist cannot be agreed.

The matter is adjourned to a date and time to be advised.

10.

The mother’s costs are reserved.

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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