Pollard & Nordberg

Case [2019] FamCA 365


FAMILY COURT OF AUSTRALIA

POLLARD & NORDBERG [2019] FamCA 365

FAMILY LAW – DE FACTO RELATIONSHIP – three children – two born to the couple – the eldest having a different biological father.

FAMILY LAW – RECOVERY ORDER –  mother removes three children from Victoria to New South Wales – no knowledge or agreement to do so from father – mother’s family and network at place where she now lives with the children – father obtains recovery order from local Magistrates Court in Victoria.

FAMILY LAW – FAMILY VIOLENCE – detailed assertions by mother – disputed by father – little evidence given by father beyond denials – mutual intervention orders – mother contending that the fact, nature and extent of family violence drove her to depart Victoria seeking refuge with her family – no evidence from a family consultant or 11F report.

FAMILY LAW – INTERIM PARENTING APPLICATION – proper approach to adopt when dealing with contested evidence, especially in respect of family violence.

FAMILY LAW – APPEAL UNDER s 96(4) – hearing de novo – extensive review of authorities – conclusion that appeal should be allowed.

FAMILY LAW – INTERIM RELOCATION ORDER – desirability or otherwise of making such an order when the evidence is incomplete – need for better evidence about the best interests of the children – further hearing of that application adjourned to Federal Circuit Court.

FAMILY LAW – TRANSFER OF PROCEEDING – from local Magistrates Court to Federal Circuit Court of Australia – subsequent to transfer Magistrates Court purportedly issuing recovery warrant directed to Australian Federal Police – nullity– recovery order made 16 April 2019 set aside.

Family Law Act 1975, pt 7, ss 4AB, 29, 37A, 60B, 60CC, 61, 67, 94, 96,
Family Law Amendment Act 1983 No 72 of 1983, s 15
Commonwealth of Australia Constitution Act (The Constitution) 1900, ch 3, ss 71, 77, 79
Aldridge v Keaton [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Attorney General v Sillem [1864] 10 HL Cas 704
Banks & Banks [2015] FamCAFC 36
Browne v Keith (2015) 55 Fam LR 208
C v S [1998] FamCA 66
CLR 681
Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Commonwealth of Australia v Bank of New South Wales [1950] AC 235
Deiter v Deiter [2011] FamCAFC 82,
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) 36 Fam LR 422
Grierson v R (1938) 60 CLR 431
Harris v Caladine (1991) 172 CLR 84
Hutchinson v Hutchinson (1978) 4 Fam LR 446
In the Marriage of Grabar (1976) 2 Fam LR 11,581
In the Marriage of Nowland (1977) 3 Fam LR 11,262
In the Marriage of Robinson and Willis (1981) 8 Fam LR 131
In the Marriage of Sanders (1976) 1 Fam LR 11,433
In the Marriage of Scott (1994) 17 Fam LR 420
In the Marriage of Sutton (No 2) (1976) 2 Fam LR 11,256
In the Marriage of Watts (1976)…

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AGLC
Pollard & Nordberg [2019] FamCA 365
Case
[2019] FamCA 365
Decision Date

CaseChat Overview and Summary

The case of Pollard & Nordberg concerned a dispute between a de facto couple regarding their three children, two of whom were biologically theirs and the eldest having a different biological father. The mother had removed the children from Victoria to New South Wales without the father's knowledge or agreement. The father subsequently obtained a recovery order from a Magistrates Court in Victoria. The mother contended that family violence had compelled her departure and sought refuge with her family in New South Wales.

The court was required to determine several legal issues, including the proper approach to contested evidence, particularly concerning allegations of family violence, when dealing with interim parenting applications. It also considered the validity of a recovery warrant issued by the Magistrates Court after the proceeding had been transferred to the Federal Circuit Court, and the desirability of making interim relocation orders in circumstances where evidence was incomplete. The court also had to review the mother's appeal under s 96(4) of the relevant legislation.

Justice Wilson found that the recovery order made by the Magistrates Court was a nullity, as it had been issued after the proceeding had been transferred to the Federal Circuit Court. The court conducted a de novo hearing of the appeal and reviewed extensive authorities. It concluded that better evidence was required regarding the best interests of the children before an interim relocation order could be made.

Consequently, the father's application for a recovery order was dismissed. The mother's application for a relocation order was adjourned for further hearing before Judge Burchardt. Until that hearing, the mother was granted sole parental responsibility, the children were to live with her, and the father was to have supervised time with the children in New South Wales, with provisions for telephone or Skype contact in default of agreement.

Orders

Orders of the court

1.

I dismiss the father’s application for a recovery order made in paragraph 3 of his initiating application dated 22 March 2019.

2.

The mother’s application for a relocation order made in paragraph 4 of her amended response dated 31 May 2019 is adjourned for further hearing before his Honour Judge Burchardt on 10 July 2019.

3.

Until the hearing before his Honour Judge Burchardt –

(a) the mother is to have sole parental responsibility;

(b) the children are to live with the mother;

(c) the father is to have supervised time with the children in New South Wales at times to be agreed; and

(d) in default of agreement the father is to have time by telephone or Skype for up to a half hour per day.

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

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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