Sutcliff & Rower - [2022] FedCFamC2F 437

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sutcliff & Rower [2022] FedCFamC2F 437

File number: ADC 3565 of 2016

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 23 March 2022

Catchwords: FAMILY LAW – matter listed for final hearing in the National Rolling List – proceeded undefended – interim orders made – children in the care of the mother – the mother has not participated in proceedings – recovery order made for the children to be recovered from Queensland and returned to the father in South Australia – addendum child impact report ordered – children to attend an interview with the Court Child Expert.

Legislation:
Evidence Act 1995 (Cth), s 144.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 65DAA, 69ZW.

Cases cited:
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969.

Ellson & Hannewell [2021] FCCA 1779.

Division: Division 2 Family Law

Number of paragraphs: 81

Date of hearing: 23 March 2022

Place: Melbourne

The Applicant: The Applicant appeared in person

The Respondent: No appearance by or on behalf of the Respondent

Counsel for the Independent Children's Lawyer: Mr G Hemsley

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 3565 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SUTCLIFF

Applicant

AND:
MS ROWER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 MARCH 2022

THE COURT ORDERS THAT:
1.The children, X born 2013 and the child Y born 2016 ('the children') live with the Father, Mr Sutcliff.
2.The children spend time and communicate with the Mother, Ms Rower as follows:
(a)By skype and/or Facebook Messenger with the Mother to call the Father on a Monday and Thursday between 5:30pm and 6:00pm South Australia time;
(i)The Father shall ensure that the said children are available to receive the call;
(ii)In the event that the said children are unavailable for any unforeseen circumstances, then the Father will facilitate a call to the Mother on the following evening at the same time;
(iii)The Father shall ensure that the said children have privacy during the conversations once they are old enough to conduct those conversations on their own.

3.Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born 2013 and the child Y born 2016 and to deliver the children to the Applicant Father MR SUTCLIFF at such place as the Applicant Father and the person effecting such recovery agree to be appropriate; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.

4.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 Sutcliff & Rower

Details

AGLC: Sutcliff & Rower [2022] FedCFamC2F 437
Case: [2022] FedCFamC2F 437
Decision Date

CaseChat Overview and Summary

The case of Sutcliff & Rower was heard by Judge O'Shannessy, concerning the proposal by Mr Sutcliff, the Father, that the children, X born in 2013 and Y born in 2016, should live with him. The children have lived all their lives with their mother, Ms Rower, the Respondent. The Mother has not participated in these proceedings for some time. The proceedings have been particularly problematic and troublesome for the parents and the Court. The Court issued a recovery order for the children to be recovered from Queensland and returned to the Father in South Australia. The Court also ordered that the children spend time and communicate with the Mother as well as attend an interview with the Court Child Expert. The Father was also restrained from any physical discipline of the children.

The legal issues the Court was required to decide were whether the final hearing should proceed undefended and in the absence of the Mother, and whether it was in the best interests of the children to live with the Father. The Court found that the Mother had notice of the final hearing and had notice that it concerned the living arrangements for the children. The Court found that it was appropriate for the final hearing to proceed on an undefended basis. The Court found that it was in the best interests of the children to live with the Father, in the short-term and until further order, in South Australia.

The Court's reasoning was based on the evidence that the Mother had notice of the final hearing and had notice that it concerned the living arrangements for the children. The Court found that it was appropriate for the final hearing to proceed on an undefended basis. The Court found that it was in the best interests of the children to live with the Father, in the short-term and until further order, in South Australia. The Court took into account the primary considerations of the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court also took into account additional considerations, including any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child's views. The Court found that if the children remain living with the Mother, they will not be able to have any meaningful relationship with the Father. The Court was concerned at the need to protect the children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence. The Court concluded that the short-term trauma to the children would be outweighed by the benefit of having time with their siblings in South Australia and with the Father.

The final orders made by the Court were that the children, X and Y, live with the Father, Mr Sutcliff, in the short-term and until further order, in South Australia. The children were also ordered to spend time and communicate with the Mother, Ms Rower, and attend an interview with the Court Child Expert. The Father was restrained from any physical discipline of the children.

Orders