TOKELY & TOKELY - [2014] FamCAFC 137

FAMILY COURT OF AUSTRALIA

TOKELY & TOKELY

[2014] FamCAFC 137

FAMILY LAW – APPEAL – RECOVERY ORDER – Where the child was taken into the father’s care and not returned – Where the mother’s evidence was that, until removal, she had been the primary carer of the child – Where the mother sought orders on an urgent basis returning the child to her – Where the trial judge acknowledged that the matter was urgent – Where the trial judge made orders adjourning the matter for 4 months to allow the father to file additional evidence and to allow the matter to be heard in a circuit court closer to where the parties lived – Whether there was a denial of procedural fairness by failing to properly engage in the issues by determining the recovery order application or failing to set the recovery order application down for hearing in a suitable time frame – Where the evidence suggested that an urgent hearing was required – Where the length of the adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation – Where it was accepted that a lengthy adjournment was tantamount to a refusal of the application on an interim basis – Where the trial judge did not determine whether the child’s best interests were to be served by remaining with the father – HELD – Appeal allowed.

Family Law Act 1975 (Cth): ss 60CC, 67Q, 67U, 67V

Ghorbani & Saeed [2013] FamCAFC 167

APPELLANT:

Ms Tokely

RESPONDENT:

Mr Tokely

FILE NUMBER:

PAC

2634

2014

APPEAL NUMBER:

2014

DATE DELIVERED:

29 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ryan & Aldridge JJ

HEARING DATE:

29 July 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

Orders made on 18 June 2014

LOWER COURT MNC:

Not applicable

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Cantrell

SOLICITOR FOR THE APPELLANT:

Aboriginal Legal Service

FOR THE RESPONDENT:

Mr Tokely in person

Orders

The Appeal is allowed.
Orders 2 and 3 made by Judge Halligan on 18 June 2014 are set aside.
The mother’s interim application filed on 4 June 2014 be heard as a matter of urgency by a Judge of the Federal Circuit Court of Australia, other than Judge Halligan.
Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the child … be independently represented by a lawyer and it is requested Legal Aid New South Wales, Sydney make arrangements as soon as practicable to secure that independent representation of the child's interests.
Within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
There be no order as to the costs of the appeal.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate…

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.

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Details

AGLC: TOKELY & TOKELY [2014] FamCAFC 137
Case: [2014] FamCAFC 137
Decision Date: 29 July 2014

CaseChat Overview and Summary

In the case of Tokely & Tokely, the mother appealed against the orders of Judge Halligan at the Parramatta Local Court, seeking the return of her child who had been taken into the father’s care. The mother had been the primary caregiver of the child prior to the father removing her from her care. The mother’s appeal focused on the trial judge’s handling of the recovery order application, which was made on an urgent basis. The mother argued that the trial judge failed to properly engage with the issues, resulting in a denial of procedural fairness, and that the lengthy adjournment of the matter did not meet the urgency of the situation.

The legal issues before the court included whether the trial judge had properly considered the urgency of the recovery order application, whether the trial judge had engaged with the issues in a manner that was procedurally fair, and whether the trial judge had adequately considered the best interests of the child in determining the interim recovery order application. The court considered the evidence, which suggested that an urgent hearing was required, and the trial judge’s decision to adjourn the matter for four months, which the mother argued was tantamount to a refusal of the application on an interim basis. The court also noted that the trial judge had not determined whether the child’s best interests were to be served by remaining with the father.

The court found that the trial judge had failed to properly engage with the issues, resulting in a denial of procedural fairness. The court held that the length of the adjournment and the listing of the matter for mention as opposed to hearing did not meet the urgency of the situation. The court found that the trial judge had not adequately considered the best interests of the child in determining the interim recovery order application. The appeal was allowed, and the orders made by the trial judge were set aside. The court ordered that the mother’s interim application be heard as a matter of urgency by a Judge of the Federal Circuit Court of Australia, other than Judge Halligan, and that the interests of the child be independently represented by a lawyer. The court also granted costs certificates to both parties.

Orders

Orders of the court

The Appeal is allowed.

Orders 2 and 3 made by Judge Halligan on 18 June 2014 are set aside.

The mother’s interim application filed on 4 June 2014 be heard as a matter of urgency by a Judge of the Federal Circuit Court of Australia, other than Judge Halligan.

Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the child … be independently represented by a lawyer and it is requested Legal Aid New South Wales, Sydney make arrangements as soon as practicable to secure that independent representation of the child's interests.

Within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

There be no order as to the costs of the appeal.

The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

When the proceedings came before Judge Halligan at Parramatta on 18 June 2014 his Honour ordered:1.The father to file and serve a response and affidavit evidence within 21 days. 2.The venue is changed to [Town C]. 3.The proceedings are listed for mention at 9.30am on 30 September 2014 in [Town C]. The mother now appeals from the orders of Judge Halligan asserting a lack of procedural fairness, a failure to set the recovery application down for hearing in a suitable time, failure to properly consider the best interests of the child and failure to give adequate reasons for the course he adopted. At the time the matter was before the trial judge the evidence consisted solely of two affidavits sworn by the mother. The following is taken from the affidavits and thus some aspects of the chronology may be controversial. The mother has two children. The child L is the child of the parties. The mother also has another child B. The child B has been diagnosed with having developmental delays and has behavioural challenges. The mother does not know who is the father of B but it is not the father of L. The father is currently 35 years of age. The parties commenced their relationship in October 2008 and started living together in about Christmas of that year. Although the parties separated in about May 2013, they continued to live together until they ceased cohabiting on or about 28 February 2014. The mother’s evidence was that she was the primary caregiver to both L and B and they remained in her full time care when the parties separated. She said that from March 2014 L had spent some time with the father only for a couple of hours on some weekends and for one overnight occasion. This aspect of her evidence is controversial. The mother said that in the afternoon of 31 May 2014, on a day when the father was spending time with the child, she received the following text:… “What the fuck have you done. Just talked to [father’s ex-girlfriend] about what her problem is and she told me all this shit that’s been going on at school. She is pissed off that she had to be interrogated by child protection for 2 hrs and you calling her names and shit. All this time I was away why we’re you trying to start shit. Going back to [Town S] tomorrow cause you were complaining about not having enough breaks so I’m taking [the child] with me”. (as per original)(Mother’s affidavit filed 4 June 2014 at [11]) The child was not returned to the care of the mother. When she swore her affidavit on 4 June 2014 the mother had managed to speak with the child once for one short period. When the mother asked when he was going to bring the child home the father replied “… You’ll see her sometime this week maybe …” (original emphasis) (Mother’s affidavit filed 4 June 2014 at [14]). The mother said that she did not know where the father lived in Town S but understood that he worked on Tuesdays, Wednesdays and Thursdays at the S Army Barracks. The mother said that on 2 June 2014 she spoke briefly to the child who said she wanted to come home. The father allegedly said “… You will see her whenever I go to [Town C] …”. When asked by the mother when that would be he said “… I don’t know. Soon. I haven’t decided …” He also said “… Well it’s my turn to have her and I haven’t decided when I want to give her back …” (original emphasis) (Mother’s affidavit filed 17 June 2014 at [2]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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