Crouper & Mitchell - [2014] FamCAFC 246

FAMILY COURT OF AUSTRALIA

CROUPER & MITCHELL

[2014] FamCAFC 246

FAMILY LAW – APPEAL – RECOVERY ORDER – Where the trial judge made interim orders requiring the return of the child from the mother in Queensland to the father in the Northern Territory after the mother unilaterally relocated with the child – Where the mother asserted errors by the trial judge in the assessment of family violence, the child’s relationship with the mother, cultural issues and failing to order a family report – Where the primary issue was the safety of the child – Where the trial judge considered all matters – No merit in any of the grounds of appeal – Where the next hearing date was proximate – Where there was no utility in the orders that could be made even if the grounds had merit – Appeal dismissed.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713

APPELLANT:

Ms Crouper

RESPONDENT:

Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid Commission

FILE NUMBER:

DNC

566

2012

APPEAL NUMBER:

2014

DATE DELIVERED:

2 December 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Murphy JJ

HEARING DATE:	2 December 2014
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 August 2014

LOWER COURT MNC:

[2014] FCCA 2109

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Neaves

SOLICITOR FOR THE APPELLANT:

Aboriginal and Torres Strait Islander Legal Service (Qld)

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Ms Holtham

SOLICITOR FOR THE RESPONDENT:

Story & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Thiele

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Northern Territory Legal Aid Commission

Orders

The appeal against the orders of Judge Harland made on 26 August 2014 be dismissed.
The application in an appeal filed on 3 November 2014 and the application in an appeal filed on 21 November 2014 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crouper & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 48 of 2014
File Number: DNC 566 of 2012

Ms Crouper

Appellant

And

Mr Mitchell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

BRYANT CJ

INTRODUCTION

By a Notice of Appeal filed on 10 September 2014, Ms Crouper (“the mother”) appeals against orders 1 to 6 of interim orders of Judge Harland made on 26 August 2014.
The effect of the orders was first that the parties’ child be recovered pursuant to a recovery order, from the mother who had unilaterally located to Queensland, and secondly that the child live with Mr Mitchell (“the father”) pending further order. The mother was also prohibited from taking possession of the child.
The father opposes the appeal. The Independent Children’s Lawyer (“ICL”) has appeared to make some limited submissions…

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 Crouper & Mitchell

Details

AGLC: Crouper & Mitchell [2014] FamCAFC 246
Case: [2014] FamCAFC 246
Decision Date: 2 December 2014

CaseChat Overview and Summary

The case of Crouper & Mitchell involved a dispute between the father and the mother concerning the custody and relocation of their child. The father, residing in the Northern Territory, and the mother, who had relocated with the child to Queensland, were before the Family Court of Australia. The father sought to enforce interim orders that required the return of the child from Queensland to the Northern Territory. The mother contested these orders, arguing that the trial judge had erred in various respects, including the assessment of family violence, the child’s relationship with the mother, cultural issues, and the failure to order a family report. The primary issue before the court was the safety and welfare of the child, which the trial judge had thoroughly considered in making the interim orders.

The legal issues the court needed to decide focused on whether the trial judge had erred in his assessment of the evidence and in the making of the interim orders. The mother argued that the trial judge had not appropriately considered the family violence, the child’s relationship with her, cultural issues, and had failed to order a family report. The court examined these contentions and found that the trial judge had indeed considered all relevant matters and had made findings based on a comprehensive evaluation of the evidence. The appeal court found no merit in the mother's grounds of appeal, concluding that the trial judge had correctly exercised his discretion.

In dismissing the appeal, the court noted that the primary consideration was the safety of the child, and the trial judge had given this paramount importance. The court also highlighted that the next hearing date was imminent, and any orders made in the appeal would not have any practical utility. The appeal was dismissed without any order as to costs. The interim orders requiring the return of the child to the Northern Territory remained in effect, ensuring the child's safety and welfare remained the court's foremost concern.

Orders

Orders of the court

The appeal against the orders of Judge Harland made on 26 August 2014 be dismissed.

The application in an appeal filed on 3 November 2014 and the application in an appeal filed on 21 November 2014 be dismissed.

There be no order as to costs.

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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