Sterry and Sterry - [2017] FCCA 2255

FEDERAL CIRCUIT COURT OF AUSTRALIA

STERRY & STERRY

[2017] FCCA 2255

Catchwords:
FAMILY LAW – Children – interim – relocation – allegations of family violence – disruption to the child’s relationship with parent – child permitted to remain in South Australia.

Applicant:

MS STERRY

Respondent:

MR STERRY

File Number:

ADC 2331 of 2017

Judgment of:

Judge Kelly

Hearing date:

20 July 2017

Date of Last Submission:

20 July 2017

Delivered at:

Adelaide

Delivered on:

20 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

All Family Law

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Sexton Family Law

ORDERS

THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:

The child X born (omitted) 2013 and the mother are permitted to reside in South Australia.
The child X spend time with the father as follows:
(a)from 10.00am until 5.00pm on Friday 21 July 2017 to take place in the presence of the maternal grandmother and either of the paternal grandparents;
(b)from 10.00am Saturday 22 July until 5.00pm Sunday 23 July 2017 to take place under the supervision of the paternal grandparents or either of them; and
(c)thereafter each alternate weekend from 10.00am Saturday until 5.00pm Sunday to take place under the supervision of either paternal grandparent, commencing Saturday 5 August 2017.
All visits take place within 100kms of the Adelaide metropolitan area.
The father collect X from and return him to the maternal grandmother’s address on the basis that the father remain in the motor vehicle and either paternal grandparent attend to effect the handover with the mother or the maternal grandmother.
Liberty to the father to vary the dates for his time with X in Adelaide.
The child X have Skype or Facetime communication with the father on two occasions each week on Monday and Wednesday at 6.00pm (SA time) or such other week days as agreed between the parties and confirmed in writing.
All parties are restrained from:
(a)abusing, criticising or denigrating the other parent or any member of their family in X’s presence and from allowing any other person to do so;
(b)discussing any issues raised in these proceedings and any allegations raised with X or in his presence and from allowing any other person to do so;
(c)discussing any issues raised in these proceedings or any allegations raised in these proceedings on Facebook or on any other social media website.
The parties or their nominees ensure that all handovers are conducted in a polite and respectful manner.
Pursuant to section 69ZW of the Family Law Act1975 the South Australian Police Department shall provide the Court with the following documents or information:
(a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS STERRY (dob (omitted) 1993), MR STERRY (dob (omitted) 1987) or the infant child X (dob (omitted) 2013); and
(b)the outcome or findings of any such investigations including antecedent reports for each of the parties.
Without admission the…

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 Sterry and Sterry

Details

AGLC: Sterry and Sterry [2017] FCCA 2255
Case: [2017] FCCA 2255
Decision Date: 20 July 2017

CaseChat Overview and Summary

This matter concerned an application before Judge Kelly regarding the welfare of a child, X, born in 2013. The proceedings involved the child's parents, Ms Sterry and Mr Sterry. The court was required to make orders concerning the child's residence, time spent with each parent, and communication between the child and the father during an adjournment period.

The central legal issues before the court were how to best facilitate time between the child and the father, given the geographical distance and the need for supervision, while also ensuring the child's safety and well-being. The court also had to consider the appropriate interim arrangements for residence, communication, and the conduct of the parties towards each other and in relation to the proceedings. Furthermore, the court was tasked with obtaining relevant information from law enforcement regarding any child abuse or family violence allegations.

In its reasoning, the court made detailed orders for the child's residence in South Australia with the mother and outlined a phased approach to supervised time with the father. This included specific dates, times, locations, and the involvement of grandparents as supervisors. The court also mandated supervised handovers and established a schedule for electronic communication between the child and the father. Crucially, the court imposed strict restraints on both parents regarding disparaging remarks about each other, discussing the proceedings in the child's presence, and using social media to discuss the case. The court also ordered the South Australian Police to provide reports on any child abuse or family violence allegations concerning the parties or the child.

The court ordered that the hearing previously scheduled for 2 August 2017 in Wollongong be vacated. It also made directions regarding the filing of affidavits and encouraged the parties to engage in settlement negotiations concerning property matters. The matter was ultimately adjourned to 6 November 2017 for further consideration.

Orders

Orders of the court

THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:

The child X born (omitted) 2013 and the mother are permitted to reside in South Australia.

The child X spend time with the father as follows:

(a) from 10.00am until 5.00pm on Friday 21 July 2017 to take place in the presence of the maternal grandmother and either of the paternal grandparents;

(b) from 10.00am Saturday 22 July until 5.00pm Sunday 23 July 2017 to take place under the supervision of the paternal grandparents or either of them; and

(c) thereafter each alternate weekend from 10.00am Saturday until 5.00pm Sunday to take place under the supervision of either paternal grandparent, commencing Saturday 5 August 2017.

All visits take place within 100kms of the Adelaide metropolitan area.

The father collect X from and return him to the maternal grandmother’s address on the basis that the father remain in the motor vehicle and either paternal grandparent attend to effect the handover with the mother or the maternal grandmother.

Liberty to the father to vary the dates for his time with X in Adelaide.

The child X have Skype or Facetime communication with the father on two occasions each week on Monday and Wednesday at 6.00pm (SA time) or such other week days as agreed between the parties and confirmed in writing.

All parties are restrained from:

(a) abusing, criticising or denigrating the other parent or any member of their family in X’s presence and from allowing any other person to do so;

(b) discussing any issues raised in these proceedings and any allegations raised with X or in his presence and from allowing any other person to do so;

(c) discussing any issues raised in these proceedings or any allegations raised in these proceedings on Facebook or on any other social media website.

The parties or their nominees ensure that all handovers are conducted in a polite and respectful manner.

Pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department shall provide the Court with the following documents or information:

(a) copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS STERRY (dob (omitted) 1993), MR STERRY (dob (omitted) 1987) or the infant child X (dob (omitted) 2013); and

(b) the outcome or findings of any such investigations including antecedent reports for each of the parties.

10.

Without admission the mother is restrained from contacting the father’s employer in relation to any issues raised in these proceedings.

11.

The hearing on 2 August 2017 before Judge Boyle in the Wollongong Registry of the Federal Circuit Court is vacated.

12.

The father’s Affidavit filed 18 July 2017 is uplifted from the Court file to be refiled within 21 days in accordance with the Federal Circuit Court (Adelaide Registry) Practice Direction (limiting interim Affidavits to 10 pages plus five annexures).

13.

The mother file any Affidavit in response within a further 21 days.

14.

The parties undertake settlement negotiations in relation to property issues during the period of the adjournment.

15.

The matter is adjourned to 6 November 2017 at 11.00am for further consideration.

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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