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Father Seeks a Recovery Order Concerning Child Living with Mother

Leary & Gilbert [2021] FCCA 1438 (20 May 2021)

The father is seeking a recovery order concerning a child who is eight years old.  The father alleges that the child is exposed to unstable living arrangements in the mother's care.  The mother failed to appear at the hearing.

Facts:

On 13 May 2021, the mother was served by the father's application for a recovery order of their child who is eight years old.  The applicant father says that this child lived in an unstable existence between him and the mother up until the middle of 2020 when the child was left with a relative in Town C.  In September 2020 the child then went to live with the father in Town B where she has been enrolled in school.  The father’s counsel made submissions that there is no evidence that the child is enrolled at a school in Darwin, where the mother currently resides.  The mother has not appeared by telephone, where the Court dealt with the application nor at the Darwin Registry or in person at the courtroom in Darwin.

Issue:

Whether or not the child should be returned to the father's care. 

Applicable law:

Family Law Act 1975 (Cth) - provides that the Court, in making parenting orders, should consider the welfare and stability of the child. 

Analysis:

Where there is every indication that the child is not enrolled at a school in Darwin, it would appear that the child has been removed from stable circumstances and is now living in circumstances that are unclear.  Upon the police welfare check on the child, it was concluded that she appeared to be okay. 

Conclusion:

The Court ordered that the child X born in 2012 live with the father.  The mother is ordered to immediately deliver the child to the father or to some other person(s) he nominates in writing to receive the child on his behalf at such place as the applicant father and mother agree failing which a recovery order do issue.

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