Tabano and Yabon - [2019] FamCA 952

FAMILY COURT OF AUSTRALIA

TABANO & YABON

[2019] FamCA 952

FAMILY LAW – CHILDREN – Recovery Order – Where orders were made earlier this year for three children live with their mother who was also given sole parental responsibility for them – Where one of the children has left the mother’s care on several occasions since then and Recovery Orders have been issued – Where there is another Recovery Order application for her return – Where the mother asserts that the father had a hand in this – Where this is disputed by the father who says that the child has elected to “vote with her feet” – Where the allegations made by the child as to why she has been leaving her mother’s care are concerning, but given the background of the case, and previous findings, those matters are to be left for consideration and determination at trial – Where the Recovery Order is to issue after the father is given the opportunity to contact the child by telephone and try to convince her to return to her mother’s care.

APPLICANT:

Ms Tabano

RESPONDENT:

Mr Yabon

INDEPENDENT CHILDREN’S LAWYER:

Gary Rolfe

FILE NUMBER:

BRC

8367

2016

DATE DELIVERED:

10 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

9 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Jurgensen
Jurgensen Horne Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms French
Cornerstone Law Offices

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Rolfe
Gary Rolfe Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER

That the Order of Judge Purdon-Sully of 26 July 2019 specifically restraining the father from any communication with the child, X born … 2006 (“the child”), is suspended until 5.00 pm on Tuesday, 10 December 2019 for the specific purpose of his telephone communication with the said child to persuade her to return to the care of her mother pending the hearing of the trial in this matter that is being expedited to meet the best interests of the three children subject of these parenting proceedings.
That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police and to all Officers of the Police Forces of all the States and Territories of Australia.
That such persons are authorised and directed to find and recover the child, X born … 2006, and for that purpose, with such assistance as they require 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.
That the child be delivered to the mother at B Street, Suburb A in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.
That the Recovery Order not be executed before 5.00 pm on Tuesday, 10…

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 Tabano and Yabon

Details

AGLC: Tabano and Yabon [2019] FamCA 952
Case: [2019] FamCA 952
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the matter of *Tabano and Yabon*, Forrest J of the Family Court of Australia considered an application concerning the welfare of a child, X, born in 2006. The dispute involved the father's communication with the child and the child's return to the mother's care, with the court seeking to expedite proceedings in the best interests of three children.

The court was required to determine whether to suspend an existing order that restrained the father from communicating with the child, and if so, for what purpose and duration. Additionally, the court needed to consider the issuance of a Recovery Order for the child, specifying the authorities empowered to execute it, the location for the child's delivery, and the conditions under which the order would take effect and remain in force.

Forrest J ordered that the previous restraint on the father's communication with the child be suspended until 5:00 pm on 10 December 2019, specifically to allow the father to telephone the child and persuade her to return to her mother's care pending the trial. The court further ordered the issuance of a Recovery Order, authorising the Marshal of the Family Court, officers of the Australian Federal Police, and state and territory police forces to locate and recover the child. This order permitted the stopping and searching of vehicles, vessels, or aircraft, and the entry and search of premises where the child might be found. The child was to be delivered to the mother in Queensland, or another agreed address, with the Recovery Order not to be executed before 5:00 pm on 10 December 2019. The Recovery Order would be executed as soon as possible if the child had not voluntarily returned to the mother's care and would remain in force for twelve months.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

That the Order of Judge Purdon-Sully of 26 July 2019 specifically restraining the father from any communication with the child, X born … 2006 (“the child”), is suspended until 5.00 pm on Tuesday, 10 December 2019 for the specific purpose of his telephone communication with the said child to persuade her to return to the care of her mother pending the hearing of the trial in this matter that is being expedited to meet the best interests of the three children subject of these parenting proceedings.

That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police and to all Officers of the Police Forces of all the States and Territories of Australia.

That such persons are authorised and directed to find and recover the child, X born … 2006, and for that purpose, with such assistance as they require 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.

That the child be delivered to the mother at B Street, Suburb A in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

That the Recovery Order not be executed before 5.00 pm on Tuesday, 10 December 2019.

That on provision of information by the mother that the child has not been returned voluntarily to her care the Recovery Order be executed as soon as possible thereafter.

That the Recovery Order remains in force for a period of twelve (12) months from the date of this Order.

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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