MATTHEWS & NORRIS - [2017] FamCA 69

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS

[2017] FamCA 69

FAMILY LAW – INTERLOCUTORY – Relocation – Where the mother seeks to relocate to New Zealand with the child on an interim basis – Where two previous applications of the same sort have been heard, determined and dismissed by this Court – Where there was no evidence of any change in circumstances since the application for relocation was last before the Court and no amendment to existing interim orders is warranted – Ordered the mother’s application is dismissed

FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Where the mother ceased allowing the child to spend time with the father pursuant to interim orders – Where the mother would not commit to faithful implementation of the existing parenting orders – Decided a recovery order should be issued and operate for one month – Recovery order issued

FAMILY LAW – EVIDENCE – Admissibility – Where the father seeks to rely on a second affidavit – Where the affidavit was in reply to the mother’s Response seeking alteration of interim orders – Application of rule 9.07 of the Family Law Rules 2004 (Cth) – Leave for the father to rely on the additional affidavit is granted

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth), r 9.07

Matthews & Norris [2016] FamCA 1156

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Norris

INDEPENDENT CHILDREN’S LAWYER:

Mr Squires, Legal Aid NSW Newcastle

FILE NUMBER:

NCC

2226

2015

DATE DELIVERED:

6 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carty

SOLICITOR FOR THE APPLICANT:

Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Squires, Legal Aid NSW Newcastle

Orders

BY CONSENT, IT IS ORDERED THAT

Leave is granted to the respondent wife to rely upon Mr West as her McKenzie Friend.

IT IS FURTHER ORDERED THAT

This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory Police Forces.
The persons to whom this recovery order is addressed are authorised and directed to find and recover the child, B born in 2010, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found including the premises of the respondent mother situated at E Street, Suburb F NSW.

Upon recovery, the child is to be delivered to the applicant father at G Street, Suburb H NSW, or to the person nominated by him in writing to receive the child on his behalf.

These orders will remain in force for a period of one month.
Otherwise:
a.The Application in a Case filed…

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 MATTHEWS & NORRIS

Details

AGLC: MATTHEWS & NORRIS [2017] FamCA 69
Case: [2017] FamCA 69
Decision Date: 6 February 2017

CaseChat Overview and Summary

In the Family Court of Australia, Austin J considered applications by a mother and father concerning their child, B. The mother sought interim orders to relocate with B to New Zealand, an application that had been dismissed twice previously. The father sought a recovery order for B, alleging the mother had ceased allowing B to spend time with him and was not faithfully implementing existing parenting orders. The father also sought leave to rely on a second affidavit in reply to the mother's response.

The court was required to determine whether to grant the mother's application for interim relocation, whether to issue a recovery order for the child, and whether to permit the father to rely on an additional affidavit. The admissibility of the father's second affidavit was governed by rule 9.07 of the Family Law Rules 2004 (Cth).

Austin J granted the father leave to rely on his second affidavit. Regarding the mother's relocation application, the court found no evidence of changed circumstances since the previous dismissals and therefore dismissed her application. The court also issued a recovery order for B, authorising law enforcement to find and recover the child and deliver B to the father, with the order to remain in force for one month. This decision was made in light of the mother's failure to comply with existing parenting orders and her absence from court when her own application-contravention was called on for hearing.

The court ordered that the mother's application for relocation and her application-contravention be dismissed. The recovery order was issued and to remain in force for one month. The proceedings were adjourned for further procedural directions regarding substantive applications under Parts VII and VIII of the Family Law Act.

Orders

Orders of the court

BY CONSENT, IT IS ORDERED THAT

Leave is granted to the respondent wife to rely upon Mr West as her McKenzie Friend.

IT IS FURTHER ORDERED THAT

This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory Police Forces.

The persons to whom this recovery order is addressed are authorised and directed to find and recover the child, B born in 2010, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found including the premises of the respondent mother situated at E Street, Suburb F NSW.

Upon recovery, the child is to be delivered to the applicant father at G Street, Suburb H NSW, or to the person nominated by him in writing to receive the child on his behalf.

These orders will remain in force for a period of one month.

Otherwise:

a. The Application in a Case filed on 17 January 2017 is dismissed; and

b. The Response to an Application in a Case filed on 1 February 2017 is dismissed.

The Application-Contravention filed by the mother on 17 January 2017 is dismissed.

The proceedings are adjourned to 9.30am on Thursday, 23 March 2017 for further procedural directions in respect of all substantive applications under Part VII and Part VIII of the Family Law Act.

Order 12 made on 24 November 2016 is discharged.

10.

Leave is granted to the applicant father to issue a subpoena to the Proper Officer of J Centre, Suburb I NSW.

NOTATIONS

A. The Application-Contravention filed by the mother on 17 January 2017 was listed for hearing before the Court at 2pm today, simultaneously with an interim parenting dispute between the parties. The parties agreed that the interim parenting dispute be determined first and that the mother’s Application-Contravention be determined immediately thereafter. During the course of the interim parenting dispute the mother absented herself from the Court without explanation and when her Application-Contravention was called on for hearing she was not present to prosecute it.

B. The parties and child are due to confer with the Family Consultant on Tuesday, 14 February 2017.

C. The parties and the Independent Children’s Lawyer presently contemplate the prospect of their applications in respect of parenting orders pursuant to Part VII of the Family Law Act being heard and determined before and separately from their respective applications for property settlement pursuant to Part VIII of the Family Law Act.

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.