FLAST CASE SUMMARY: Herbert 2019: Recovery Orders
Herbert & Herbert [2019] FamCA 5 (10 January 2019)
FACTS:
- Two boys: X who was born in 2003 and Y who was born in 2009.
- Mother was primary carer of the boys.
- On 7 September 2018 interim orders were made.
- Ordered both boys to live with the father and not to spend any time with the mother nor communicate with her unless with the father’s agreement.
- On 7 December 2018, the mother applied for an order that the boys again start spending some unsupervised time with her.
- The ICL and father opposed the application.
- The Court ordered the mother for unsupervised time with the boys on alternate weekends.
- Included in the orders was an option for the father to apply for an urgent hearing for recovery orders if the children were not retuned at the end of their visitation.
- On 9 January 2019, the father asks for the matter to be listed urgently for the hearing of an application for a recovery order. Boy X (15 year old) had not been returned to the father on Sunday, 6 January 2019 as was required by the orders.
- Although the boy Y was returned at the end of that weekend, the boy X was not. The mother states that it was the child’s own voluntary decision and that he told the father “I’m not coming back with you."
- Evidence suggests he was returned to his father on Tuesday night, 8 January 2019, at approximately 6.30 pm.
- Wednesday 9 January, the boy got on his pushbike and rode back to his mother’s place without his father’s knowledge or consent.
- The mother says that she took the boy back to the father’s home in the morning and the father was not there, she took him back to her place.
- The mother states that she again took him back to the father’s place it is also an undisputed fact that again the child got up and without his father’s knowledge or consent got on his bike and rode back to his mother’s place.
HELD:
Recovery orders for the 15-year boy old to be returned to the father- not to be executed until after 4.30 pm if the Mother has not returned him or he does not voluntarily return himself, the Mother also looses unsupervised time and all communication with both boys until further orders.
While the Mother emphasises that she repeatedly takes the child back, the evidence display that the mother lacks capacity to be able to persuade the boy that it's not in the child's best interests to keep doing what he has been doing, returning to her home against the orders.
