Summers & Shaw - [2011] FamCA 889

FAMILY COURT OF AUSTRALIA

SUMMERS & SHAW

[2011] FamCA 889

FAMILY LAW – CHILDREN – interim order seeking return of child refused
FAMILY LAW – PROCEDURAL – application of the protocol for division of work between the Family Court of Australia and the Federal Magistrates Court

APPLICANT:

Mr Summers

RESPONDENT:

Mr Shaw

FILE NUMBER:

CSC

107

2009

DATE DELIVERED:

16 November 2011

PLACE DELIVERED:

C Town

PLACE HEARD:

C Town

JUDGMENT OF:

Watts J

HEARING DATE:

16 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

Miller Harris

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Leave be granted to the mother to rely upon her response and an affidavit filed today in court on her undertaking that she will pay the relevant filing fee.
Leave be granted to the father to amend his Application for interim orders to seek an order that B be returned by the mother to C Town in lieu of order 4 which was sought in his Application in a Case filed 4 November 2011.
The father’s interim application that the child be returned to C Town by the mother from Melbourne be dismissed.
Pursuant to s 33B(1) and (2)(b) Family Law Act, this matter be transferred to the Federal Magistrates Court.
Until further order, the child will live with his mother in D Town/E Town, Victoria, pursuant to the provisions of order 23 made 7 October 2009.

NOTATION:

The court has indicated that the parties should attempt to reach agreement about interim arrangements for the child spending time with his father, possibly with the assistance of Mr F.
The mother has indicated she will facilitate time between the child and his father.
I will attempt to liaise with the Federal Magistrates Court in order to set this matter for a return date that creates an opportunity for the parties to have any controversies in respect of interim matters dealt with and have procedural directions made in relation to the application for final orders that both parties seek.

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

FAMILY COURT OF AUSTRALIA AT C TOWN

FILE NUMBER: CSC 107 of 2009

Mr Summers

Applicant

And

Mr Shaw

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The father has filed an Application in a Case on 4 November 2011 in which he sought an order that the mother be restrained from removing or attempting to remove the child, the child B born in 2007 from the C Town area.
It is an agreed fact that the child is no longer in the C Town area and is living with his mother in Melbourne.
The father has been granted leave to amend his application today to seek an order that the child be returned by the mother to C Town.
The father supports his application by an affidavit filed on 4…

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 Summers & Shaw

Details

AGLC: Summers & Shaw [2011] FamCA 889
Case: [2011] FamCA 889
Decision Date: 16 November 2011

CaseChat Overview and Summary

In the matter of *Summers & Shaw*, heard before Watts J, the dispute concerned an interim application by the father seeking the return of a child, B, to C Town by the mother. The mother had brought B to Melbourne.

The court was required to determine whether to grant the father's interim application for the child's return, and also to consider the appropriate forum for the proceedings, specifically in light of the protocol for the division of work between the Family Court of Australia and the Federal Magistrates Court.

Watts J dismissed the father's interim application for the child's return, finding that it was not in the child's best interests to be returned to C Town at that stage. The court also ordered that the matter be transferred to the Federal Magistrates Court pursuant to s 33B(1) and (2)(b) of the *Family Law Act*. Until further order, the child was to live with his mother in D Town/E Town, Victoria, consistent with a previous order. The court encouraged the parties to reach agreement on interim arrangements for the child spending time with the father, with the mother indicating she would facilitate such time. Watts J indicated an intention to liaise with the Federal Magistrates Court to schedule a return date for the matter to address interim issues and procedural directions for final orders.

Orders

Orders of the court

Leave be granted to the mother to rely upon her response and an affidavit filed today in court on her undertaking that she will pay the relevant filing fee.

Leave be granted to the father to amend his Application for interim orders to seek an order that B be returned by the mother to C Town in lieu of order 4 which was sought in his Application in a Case filed 4 November 2011.

The father’s interim application that the child be returned to C Town by the mother from Melbourne be dismissed.

Pursuant to s 33B(1) and (2)(b) Family Law Act, this matter be transferred to the Federal Magistrates Court.

Until further order, the child will live with his mother in D Town/E Town, Victoria, pursuant to the provisions of order 23 made 7 October 2009.

NOTATION:

The court has indicated that the parties should attempt to reach agreement about interim arrangements for the child spending time with his father, possibly with the assistance of Mr F.

The mother has indicated she will facilitate time between the child and his father.

I will attempt to liaise with the Federal Magistrates Court in order to set this matter for a return date that creates an opportunity for the parties to have any controversies in respect of interim matters dealt with and have procedural directions made in relation to the application for final orders that both parties seek.

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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