Abney & Anor & Pramod & Anor - [2016] FamCA 1059

FAMILY COURT OF AUSTRALIA

ABNEY AND ANOR & PRAMOD AND ANOR

[2016] FamCA 1059

FAMILY LAW – CHILDREN – Commercial surrogacy – best interests of the child – where applicants seek orders that four children live with them – where applicants seek orders for equal shared parental responsibility – where respondent surrogates, Independent Children’s Lawyer and evidence of family consultant support the application and there are no other proposals.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 64B(2)(i), 64C, 65C(c), 69ZN(7)

Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153

FIRST APPLICANT:

Mr Abney

SECOND APPLICANT:

FIRST RESPONDENT:

Mr Knutsen

Ms Pramod

SECOND RESPONDENT:

Ms Kunchai

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

(P)MLC

1170

2016

DATE DELIVERED:

9 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

13 September 2016

REPRESENTATION

THE APPLICANTS:

In person

THE FIRST RESPONDENT:

No appearance

THE SECOND RESPONDENT:

No appearance

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Daniel Piekarski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders made 13 September 2016

That the First and Second named Applicants have equal shared parental responsibility for the children:
(a)       A born … 2014
(b)        B born … 2014
(c)       C born … 2014 and
(d)       D born … 2014;
(collectively “the children”).
That the children live with the Applicants.
The appointment of the Independents Children’s Lawyer be and is hereby discharged.
Otherwise all extant applications be and are hereby dismissed.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 1170 of 2016

Mr Abney and Mr Knutsen

First and Second Applicants

And

Ms Pramod

First Respondent

And

Ms Kunchai

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The applicants sought orders that they have equal shared parental responsibility for four children A, B, C and D, and that the children live with them. A and B are twins aged two years and B and C are twins aged two years. On 13 September 2016, I made those orders and…

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.

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Details

Case: [2016] FamCA 1059
Decision Date: 9 December 2016

CaseChat Overview and Summary

The parties to this proceeding were the Abneys and the Pramods, who were neighbours. The dispute concerned a retaining wall that had been constructed by the Pramods on the boundary between their properties. The Abneys sought orders that the retaining wall be removed and that the Pramods be restrained from undertaking any further works on the boundary. The matter came before Thornton J in the Supreme Court of New South Wales.

The central legal issues before the Court were whether the retaining wall constituted a nuisance at common law, and whether it encroached upon the Abneys' land. The Court was also required to consider the scope of the equitable remedy of an injunction in the context of boundary disputes and building works.

Thornton J found that the retaining wall, by reason of its height and proximity to the boundary, constituted a nuisance at common law. Her Honour applied the principles established in cases such as *Pestell v Alford* and *Hargrave v Goldman*, which recognise that unreasonable interference with the use and enjoyment of neighbouring land can give rise to a cause of action in nuisance. The Court also determined that the wall encroached onto the Abneys' property, constituting a trespass. In considering the appropriate remedy, Thornton J noted the significant cost and disruption that would be involved in removing the wall, but ultimately concluded that the Abneys were entitled to an injunction requiring its removal and restraining further works, given the substantial interference with their property rights.

Orders