Terrill & Deighton - [2023] FedCFamC2F 930

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terrill & Deighton [2023] FedCFamC2F 930

File number(s): MLC 9773 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 July 2023

Catchwords: FAMILY LAW – application for recovery order – where final orders made within last 8 months – where parties consent to final orders for children to live with Father and spend school holiday time with Mother – where Mother has not returned the children to the Father’s care – where Mother alleges the children’s mental health is impacted by behaviour of the Father and seeks for children to remain in Queensland – where Father seeks the children return within three days – orders made for Mother to return children to the Father’s care within three days – Rice & Asplund decision reserved.

Legislation: Family Law Act 1975 (Cth), ss 13C, 60CC.

Cases cited: Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725.

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 24 July 2023

Place: Melbourne

Solicitor for the Applicant: Robertson Legal & Conveyancing Lawyers Pty Ltd

Respondent: Litigant in person
ORDERS

MLC 9773 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TERRILL

Applicant

AND:
MS DEIGHTON

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 JULY 2023

THE COURT ORDERS THAT:
1.Orders and reasons with respect to the parties cross-applications regarding the principle known as to Rice v Asplund [1978] FamCAFC 128 are reserved.
2.Within three days of the date of these Orders, the Respondent Mother return the children namely X born in 2011, Y born in 2014 and Z born in 2017 (collectively “the children”) to the Applicant Father pursuant to order 3.2 of the Final Orders dated 8 December 2022.
3.In the event that the children are not returned to the Father’s care within three days the Father has liberty to apply to the Court by email at short notice.
4.The parties hereafter conduct themselves in accordance with the Final Orders made 8 December 2022.
5.As soon as practicable, the Father enol in, and complete in due course, the following programs:
(a)A parenting orders program; and
(b)A Tuning Into Teens Program.

6.As soon as practicable the Mother engage in a course of psychological counselling with a therapist for the purposes of assisting her with her parental obligations pursuant to the Final Orders of 8 December 2022 for no less than five sessions.
7.The Mother is to provide the therapist referred to in order 6 herein with a copy of the orders and reasons made this day and the two Family Reports of Ms B and the final order of 8 December 2022.

AND THE COURT NOTES THAT:
A.Costs of this day are reserved.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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…

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 Terrill & Deighton

Details

AGLC: Terrill & Deighton [2023] FedCFamC2F 930
Case: [2023] FedCFamC2F 930
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an application by Mr Terrill for an order to compel Ms Deighton to return their three children to his care in Melbourne, as per the final orders made in December 2022. Ms Deighton, who had relocated to Queensland, opposed the application, seeking to have the children remain with her in Queensland. The court had to decide whether to order the children's return to their father or grant Ms Deighton's application to have the children live with her. Additionally, the court had to determine whether to permit the proceedings to continue based on new facts or dismiss them for lack of new circumstances.

The court reasoned that the final orders made in December 2022 were recent and represented an agreement between the parents. It was not satisfied that there had been sufficient changes in circumstances to warrant a change in the living arrangements of the children. The court emphasised the importance of stability in the children's education and living arrangements, noting the distress that changing their living situation would cause. The court found that the children's views, while significant, did not override the agreed-upon living arrangements made in the final orders. It was also noted that the children had a closer relationship with their mother, but this alone did not determine their living arrangements.

The court ordered that the children be returned to their father's care within three days. It also ordered both parents to undertake specific programs: the father to complete a parenting program and a "Tuning Into Teens" course, and the mother to engage in psychological counselling to assist her with her parental obligations. The court reserved its decision on the principle of Rice v Asplund, a matter related to the children's residency and contact orders.

Orders