Kori & Georgene (No 2) - [2024] FedCFamC1F 328

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kori & Georgene (No 2) [2024] FedCFamC1F 328

File number(s): BRC 16543 of 2020

Judgment of: BAUMANN J

Date of judgment: 1 May 2024

Catchwords: FAMILY LAW – PARENTING – Second Recovery order

Legislation: Family Law Act 1975 (Cth)

Division: Division 1 First Instance

Number of paragraphs: 11

Date of hearing: On the papers in chambers

Place: Brisbane

Solicitor for the Applicant: Litigant in person (did not participate)

Solicitor for the Respondent: Turnbull Mylne (no appearance)
ORDERS

BRC 16543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KORI

Applicant

AND:
MR GEORGENE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

1 MAY 2024

THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Court having considered the Application in a Proceeding and supporting affidavit filed on behalf of the father today, 1 May 2024, the Application proceed ex parte on an urgent basis.

Recovery Order
2.That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the 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 child, X born 2015 and to deliver the child to the Respondent father at such place as the father and the person effecting such recovery agree to be appropriate; 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 said child may be found.

3.That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the child from the father’s care until further order of the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kori & Georgene has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J

Yesterday, the Court, in chambers, made a recovery order in respect of the child X, born 2015. The order was made ex parte and on an urgent basis.
A short history of the matter, for context, is helpful.
After a trial, which took place…

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 Kori & Georgene (No 2)

Details

AGLC: Kori & Georgene (No 2) [2024] FedCFamC1F 328
Case: [2024] FedCFamC1F 328
Decision Date: 1 May 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an urgent ex parte application made by Mr Georgene, the father, seeking a Recovery Order for his child, X, born in 2015. The applicant, Ms Kori, the mother, was not present at the hearing. The matter was presided over by Baumann J. The primary concern was the father's urgent need to locate and retrieve his child, who had been allegedly removed from his care without justification. The court was tasked with determining whether the circumstances warranted the issuance of a Recovery Order under the Family Law Act 1975 (Cth) to facilitate the child's recovery and to prevent further unauthorised removals.

The court considered the legal standards governing the issuance of a Recovery Order under Part XIVB of the Family Law Act. Key considerations included the urgency of the application, the potential risk to the child's welfare, and the likelihood that the child was being unlawfully withheld from the father. The court examined the affidavit evidence presented by the father, which detailed instances of the mother's alleged attempts to remove the child from his care without proper justification. Additionally, the court weighed the statutory requirement to act in the best interests of the child. The judge concluded that the evidence presented met the threshold for granting the urgent Recovery Order, given the compelling need to safeguard the child's welfare and ensure compliance with the father's parenting arrangements.

Baumann J issued a Recovery Order that authorised law enforcement to locate and recover the child, X, and deliver the child to the father. The order also empowered officers to stop and search any vehicle, vessel, or aircraft and to enter and search any premises where there was reasonable cause to believe the child might be found. Furthermore, the court restrained the mother and her agents from removing or attempting to remove the child from the father's care. The decision emphasised the importance of protecting the child's welfare and ensuring adherence to the parenting order. The orders were made effective until further notice from the court.

Orders

Orders of the court

BRC 16543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KORI

Applicant

AND:

MR GEORGENE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

1 MAY 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Court having considered the Application in a Proceeding and supporting affidavit filed on behalf of the father today, 1 May 2024, the Application proceed ex parte on an urgent basis.

Recovery Order

2. That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the 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 child, X born 2015 and to deliver the child to the Respondent father at such place as the father and the person effecting such recovery agree to be appropriate; 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 said child may be found.

3. That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the child from the father’s care until further order of the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 16543 of 2020
Judgment of:	BAUMANN J
Date of judgment:	1 May 2024
Catchwords:	FAMILY LAW – PARENTING – Second Recovery order
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of hearing:	On the papers in chambers
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person (did not participate)
Solicitor for the Respondent:	Turnbull Mylne (no appearance)

BRC 16543 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KORI Applicant
AND:	MR GEORGENE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	1 MAY 2024