Crouper & Mitchell (No 2)

Case [2024] FedCFamC2F 523


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Crouper & Mitchell (No 2) [2024] FedCFamC2F 523 

File number(s): CSC 293 of 2024
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 19 April 2024
Catchwords:  FAMILY LAW – PARENTING – 15-year-old child removed from care of residential parent – Allegations of past serious violence – Allegations of past serious alcohol abuse – Recovery order not pressed – Parents to use parental authority to ensure child returned to custodial parent – Rice & Asplund raised but not dealt with – Order for child to return to usual residential parent – Application for recovery order adjourned pending return of child.
Legislation: Family Law Act 1975 (Cth) ss 66CC(2A)
Cases cited: Rice & Asplund [1978] FamCA 84
Division: Division 2 Family Law
Number of paragraphs: 51
Date of last submission/s: 19 April 2024
Date of hearing: 19 April 2024
Place: Melbourne
Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Services
Solicitor for the Respondent: In Person

ORDERS

CSC 293 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CROUPER

Applicant

AND:

MR MITCHELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

19 APRIL 2024

THE COURT ORDERS THAT:

1.The child, X born in 2008, live with the applicant, her mother, Ms Crouper (‘the Mother’).

2.The respondent, the father of X, Mr Mitchell (‘the Father’), do all acts and things necessary and practicable to fly the child from City E to City B Airport for the purpose of returning to the care of the Mother as soon as possible, and:

(a)at his own expense; and

(b)by no later than 5.00 pm on Tuesday 23 April 2024.

3.The Father do all acts and things to cause and ensure that the Mother is kept aware of the up-to-the-minute arrangements for the return of X and the Father update the Mother via text message as to when X is due to arrive at City B Airport.

4.The Mother and Father communicate about arrangements for changeover for the child at City B Airport, and otherwise in regard to the child’s welfare, via text message and in respectful terms.

5.The Father be and is prohibited from removing X from the care of the Mother and/or taking possession of X.

6.The matter be and is adjourned to Wednesday 24 April 2024 at 10.00 am for Interim Hearing at the Federal Circuit and Family Court of Australia at Melbourne, for the purpose of ascertaining whether X has been returned to the care of the Mother and whether any further order or recovery order is required.

7.The parties be at liberty to request the hearing listed for Wednesday 24 April 2024 be vacated.

8.Save as provided at Order 6 herein, pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the proceedings and all extant applications, including the Mother’s application pursuant to the rule known as the rule in Rice v Asplund, are transferred to the Brisbane…

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AGLC
Crouper & Mitchell (No 2) [2024] FedCFamC2F 523
Case
[2024] FedCFamC2F 523
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Crouper, the mother, applied for an order under the Family Law Act 1975 (Cth) to compel Mr Mitchell, the father, to return their 15-year-old child, X, to her care. The child had been removed from Ms Crouper's care and placed with Mr Mitchell. The application arose from allegations of past serious violence and alcohol abuse by Mr Mitchell. Ms Crouper did not press for a recovery order, instead seeking an order for the child to return to her care and for Mr Mitchell to facilitate the child's return. The court was required to determine whether Mr Mitchell should be compelled to return the child to Ms Crouper and if there were any other orders necessary to ensure the child's safety and welfare.

The court considered the welfare and best interests of the child as the paramount consideration. The court noted that while there were serious allegations against Mr Mitchell, Ms Crouper did not seek a recovery order and the child was currently in his care. The court concluded that the child should return to Ms Crouper's care and directed Mr Mitchell to facilitate the child's return. The court also prohibited Mr Mitchell from removing the child from Ms Crouper's care and required the parties to communicate respectfully regarding the child's welfare. The court adjourned the matter to ascertain whether the child had been returned and to determine if further orders were necessary.

The court ordered that the child live with Ms Crouper and that Mr Mitchell return the child to her care by a specified date. The court prohibited Mr Mitchell from removing the child from Ms Crouper's care and required him to communicate with Ms Crouper regarding the child's welfare. The court also requested information from child protection and welfare authorities in the Northern Territory and Queensland, and transferred the matter to the Brisbane registry for further hearing. The court made several other orders regarding the communication of information and the transfer of the matter to the Brisbane registry.

Orders

Orders of the court

CSC 293 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CROUPER

Applicant

AND:

MR MITCHELL

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

19 APRIL 2024

THE COURT ORDERS THAT:

1. The child, X born in 2008, live with the applicant, her mother, Ms Crouper (‘the Mother’).

2. The respondent, the father of X, Mr Mitchell (‘the Father’), do all acts and things necessary and practicable to fly the child from City E to City B Airport for the purpose of returning to the care of the Mother as soon as possible, and:

(a) at his own expense; and

(b) by no later than 5.00 pm on Tuesday 23 April 2024.

3. The Father do all acts and things to cause and ensure that the Mother is kept aware of the up-to-the-minute arrangements for the return of X and the Father update the Mother via text message as to when X is due to arrive at City B Airport.

4. The Mother and Father communicate about arrangements for changeover for the child at City B Airport, and otherwise in regard to the child’s welfare, via text message and in respectful terms.

5. The Father be and is prohibited from removing X from the care of the Mother and/or taking possession of X.

6. The matter be and is adjourned to Wednesday 24 April 2024 at 10.00 am for Interim Hearing at the Federal Circuit and Family Court of Australia at Melbourne, for the purpose of ascertaining whether X has been returned to the care of the Mother and whether any further order or recovery order is required.

7. The parties be at liberty to request the hearing listed for Wednesday 24 April 2024 be vacated.

8. Save as provided at Order 6 herein, pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the proceedings and all extant applications, including the Mother’s application pursuant to the rule known as the rule in Rice v Asplund, are transferred to the Brisbane registry of the Federal Circuit and Family Court of Australia, Division 2, and it is requested that, subject to any application or direction of the Court, the matter be included in the list of cases to be dealt with at the Town D circuit of the Court, and adjourned to a date to be fixed by that registry.

9. Pursuant to section 69ZW of the Family Law Act 1975 is it requested the child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland provide to the Court the following documents and information:

(a) any notifications to any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland of suspected abuse of X to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;

(b) any assessments of any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;

(c) any reports commissioned by any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and

(d) in the event that any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in these proceedings.

10. The Mother’s solicitor is requested to send the full names and dates of birth, as known to the Mother, of all of X’s siblings and half-siblings, maternal and paternal as soon as practical by email to the Associate to Judge O’Shannessy and to the Father.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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