Lambie and Guy - [2019] FCCA 1450

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBIE & GUY

[2019] FCCA 1450

Catchwords:
FAMILY LAW – Application for recovery order – applicable principles – orders made for immediate return of child to the father in default of which recovery order to issue.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC; 61DA, 61DB, 62B, 64B, 65D, 65DA, 65DAA, 66, 67Q, 67Z, 68B, 68P, 69ZL

Federal Circuit Court Rules 2001 (Cth), r.21.15

Cases cited:

Bondelmonte & Bondelmonte (2017) 259 CLR 662
Goode & Goode (2006) 36 Fam LR 422
Habib & Ibrahim [2019] FamCA 116
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles (2007) FLC 93-343
SS & AH [2010] FamCAFC 13
Stott & Holgar [2017] FamCAFC 152

Applicant:

MR LAMBIE

Respondent:

MS GUY

File Number:

MLC 5371 of 2019

Judgment of:

Judge A Kelly

Hearing date:

27 May 2019

Date of Last Submission:

27 May 2019

Delivered at:

Melbourne

Delivered on:

30 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr McCloskey

Solicitors for the Applicant:

Marcou & Associates Pty Ltd

Solicitor Advocate for the Respondent as Duty Solicitor:

Ms Ballard

ORDERS

Paragraphs 4, 6 and 7 of the order made on 20 May 2019 be vacated.
By consent, until further order, the Respondent be restrained whether by herself, her servants, agents or howsoever otherwise from removing, attempting to remove or allowing the removal of the child [X] born … 2017 (Child) from the State of Victoria.
Until further order and pursuant to paragraph 5 of the order made on 20 May 2019, the Child live with the Applicant father.
Subject to paragraph 5 of this Order, the Child spend time with the Respondent mother to be supervised by Ms A or such other person and at such times as may be agreed by the parties, provided that the Child shall spend no less than 2 hours per day on 2 days each week and as otherwise may be agreed by the parties in writing.
Unless by 7.00pm this day, Monday, 27 May 2019, the Respondent mother does return the Child to the Applicant father at Street B, Suburb C, in the State of Victoria, pursuant to s 67Q of the Family Law Act 1975 (Cth), (Act) a Recovery Order do issue authorising and 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 Child [X] born … 2017; and
(b)to deliver the Child to the Applicant father at Street B, Suburb C, in the State of Victoria, or such other place (as is reasonably accessible by the father) as the person effecting such recovery may nominate; and
(c)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…

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 Lambie and Guy

Details

AGLC: Lambie and Guy [2019] FCCA 1450
Case: [2019] FCCA 1450
Decision Date: 30 May 2019

CaseChat Overview and Summary

This matter concerned an application before Judge A Kelly in the Federal Circuit Court of Australia, involving the Applicant father and the Respondent mother regarding their child, [X]. The dispute centred on the care and welfare of the child, including issues of the child's residence, time spent with each parent, and the potential for the child to be removed from the State of Victoria. The court was required to make orders addressing these concerns and to consider the interaction between its orders and a prior Intervention Order made by the Magistrates' Court.

The court was required to determine several legal issues, including whether to vacate certain previous orders, to make orders regarding the child's residence and time with each parent, and to issue a Recovery Order if the child was not returned to the Applicant father. Furthermore, the court needed to address the communication between the parties, their participation in parenting programs, and the conduct of a Child Inclusive Conference. A significant issue was the determination of the operative legal instrument where the court's orders might conflict with an Intervention Order previously made by the Magistrates' Court.

In its reasoning, the court made orders by consent in relation to the child's residence and time with the Respondent mother, subject to supervision. Crucially, the court issued a Recovery Order pursuant to s 67Q of the *Family Law Act 1975* (Cth) authorising law enforcement to recover the child if the Respondent mother failed to return the child to the Applicant father by a specified time. The court also declared that its orders prevailed over any inconsistent Interim Intervention Order made by the Magistrates' Court, rendering such an Intervention Order invalid pursuant to s 68Q(1) of the Act. The court further directed the parties to attend a parenting program and a Child Inclusive Conference, and to communicate via a parenting application.

Orders

Orders of the court

Paragraphs 4, 6 and 7 of the order made on 20 May 2019 be vacated.

By consent, until further order, the Respondent be restrained whether by herself, her servants, agents or howsoever otherwise from removing, attempting to remove or allowing the removal of the child [X] born … 2017 (Child) from the State of Victoria.

Until further order and pursuant to paragraph 5 of the order made on 20 May 2019, the Child live with the Applicant father.

Subject to paragraph 5 of this Order, the Child spend time with the Respondent mother to be supervised by Ms A or such other person and at such times as may be agreed by the parties, provided that the Child shall spend no less than 2 hours per day on 2 days each week and as otherwise may be agreed by the parties in writing.

Unless by 7.00pm this day, Monday, 27 May 2019, the Respondent mother does return the Child to the Applicant father at Street B, Suburb C, in the State of Victoria, pursuant to s 67Q of the Family Law Act 1975 (Cth), (Act) a Recovery Order do issue authorising and 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 Child [X] born … 2017; and

(b) to deliver the Child to the Applicant father at Street B, Suburb C, in the State of Victoria, or such other place (as is reasonably accessible by the father) as the person effecting such recovery may nominate; and

(c) 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 Child may be found.

Upon any breach of this Order, the persons to whom this Recovery Order is addressed are authorised and directed to arrest the Respondent mother without a warrant.

Pursuant to s 68P(3) of the Act, direct that a copy of this Order be provided as soon as is reasonably practicable to:

(a) the Applicant and Respondent;

(b) the Registrar or Principal Officer of the Magistrates Court at Melbourne;

(d) the Department of Health and Human Services, Victoria.

Pursuant to s 67Z(3) of the Act, the Registry Manager of the Federal Circuit Court of Australia is requested to notify the Department of Health and Human Services, Victoria, of the Applicant’s Notice of Risk filed on 17 May 2019.

Until further order the parties communicate in relation to the care and welfare of the Child by means of a parenting application such as MyMob or the 2Houses parenting App.

10.

The Applicant father and the Respondent mother, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating one another and from permitting any other person so to do.

11.

Both parties must attend, participate in and complete, as soon as practicable, an appropriate parenting orders program (such as, for example, the Stand By Me, Parent Orders Program) or other appropriate course or service (Program) and, further, each party must:

(a) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

(b) pay and otherwise be responsible for his/her share of all costs associated with the Program;

(c) abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;

(d) without affecting the generality of the above requirements – as and when required satisfactorily participate in and complete all recommended parts of the Program (including, but not limited to, some or all of the following: any relevant intake course or process, parent group, children’s group, individual sessions for parents and children, child focused mediation and/or Children’s Contact Service); and

(e) provide an appropriate certificate of completion of the Program to the solicitors for the other party and to the independent children’s lawyer.

12.

Direct that by 4.00pm on Wednesday, 31 July 2019, the Respondent file and serve a Notice of Address for Service, Notice of Risk, Response and any answering affidavit.

13.

Pursuant to s.11F of the Act, the parties and the Child attend upon a Family Consultant of the Federal Circuit Court of Australia (Family Consultant) for the purposes of a Child Inclusive Conference on 3 September 2019 and:

(a) the party with the care of the Child and the Child to attend at 9.00am; and

(b) the other party to attend at 10.00am,

at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.

14.

Pursuant to paragraph 13 of this Order the Family Consultant shall provide a written report to the court and to the parties with such written memorandum to be released no later than 20 September 2019.

15.

The matter be adjourned for Mention on 30 September 2019 at 10:00am in the Federal Circuit Court of Australia at Melbourne.

16.

Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

AND THE COURT DECLARES:

17.

Pursuant to s 68P(2)(a) of the Act, that to the extent that this Order may be inconsistent with an Interim Intervention Order (IVO) that was later made by the Magistrates’ Court at Melbourne on 23 May 2019:

(a) this Order prevails over and operates according to its terms;

(b) that Intervention Order is invalid, pursuant to s 68Q(1) of the Act.

AND THE COURT NOTES THAT:

A. Paragraph 5 of the Order made on 20 May 2019, is not inconsistent with the Intervention Order and remains operative as a parenting order according to its terms.

B. Paragraph 9 of the IVO provides that the Applicant father, MR LAMBIE, may do anything that is permitted by the Act.

C. Pursuant to s 68P(2) (b)-(d) of the Act, the court has given a detailed explanation:

(a) to the parties as to how the contact that this Order provides for is to take place;

(b) to the parties of the terms of this Order, their purpose, the obligations which it creates, the consequences that may flow from a failure to obey its terms, its reasons for making this Order and the parties right to apply for a variation or revocation of the Order.

D. Pursuant to s 68P(2)(b)-(d) of the Act, Women’s Legal Service is also requested to provide the respondent with an explanation as to how the contact that it provides for is to take place.

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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