ADAMSON & ADAMSON - [2013] FamCAFC 157

FAMILY COURT OF AUSTRALIA

ADAMSON & ADAMSON

[2013] FamCAFC 157

FAMILY LAW – APPEAL – CHILDREN – with whom a child shall live – relocation.

Family Law Act, 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
De Winter and De Winter (1979) FLC 90-605
Goode and Goode (2006) FLC 93-286
Porter & Byrne [2009] FamCAFC 8
Sasterawan v Morris [2008] NSWCA 70

APPELLANT:

Ms Adamson

RESPONDENT:

Mr Adamson

FILE NUMBER:

PAC

1461

2007

APPEAL NUMBER:

122

2013

DATE DELIVERED::

9 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

16 September 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 August 2013

LOWER COURT MNC:

[2013] FCCA 1228

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S Schonell

SOLICITOR FOR THE APPELLANT:

Blackman Legal

COUNSEL FOR THE RESPONDENT:

Ms A Petrie

SOLICITOR FOR THE RESPONDENT:

Fortis Law Group

Orders

Appeal against the orders of Judge Scarlett of 12 August 2013 be dismissed.
Appellant mother pay the Respondent father’s costs of and incidental to the appeal as agreed or assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 122 of 2013
File Number: PAC 1461 of 2007

Ms Adamson

Appellant

and

Mr Adamson

Respondent

REASONS FOR JUDGMENT

Ms Adamson (“the mother”) appeals against injunctions made by Judge Scarlett on 12 August 2013 whereby his Honour restrained the mother from removing two children X (born in 1999) and Y (born in 2001) from outside the Sydney Metropolitan area and requiring her to return the children to an address within the Sydney Metropolitan area within 14 days of his order.
The father of the children, Mr Adamson opposes the appeal and seeks to maintain the judge’s orders.

Background

In order to give some context to the appeal, it is necessary to set out some factual and procedural history of this matter.
The parties met in 1995 and commenced to live together in 1997. They married in 2000 and separated in late 2004. In 2006 the mother commenced proceedings for divorce. The parties agreed on a division of the property and on arrangements for the children by which the father would spend time with the children every second weekend, where his work commitments allow, in school holidays. The parties had a home in C and as a result of their agreement, the father transferred his interest in that property to the wife in return for a payment to him of $50,000. There was a mortgage on the property which the wife took over.
In 2006 they agreed that the children would spend time with the father from Friday afternoon until Sunday. In 2008 the parties agreed that the father would also spend time with the children each Wednesday evening. 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 ADAMSON & ADAMSON

Details

AGLC: ADAMSON & ADAMSON [2013] FamCAFC 157
Case: [2013] FamCAFC 157
Decision Date: 9 October 2013

CaseChat Overview and Summary

Adamson & Adamson involved a family law dispute between the parents of a child, focusing on the issue of relocation. The mother, the appellant, sought to relocate with their child to another jurisdiction, a move that the father, the respondent, opposed. The case was heard at the Family Court of Australia, with the appeal against the original orders made by Judge Scarlett on 12 August 2013.

The legal issues before the court centred on the best interests of the child and the factors that should be considered when deciding whether a child should relocate with a parent. The court had to assess the merits of the mother’s proposed relocation, taking into account the child’s needs and the potential impact on the father’s relationship with the child. The court also needed to determine whether the mother had provided sufficient evidence to justify the relocation and whether the father's objections were valid.

The court dismissed the appeal, affirming Judge Scarlett’s decision. The reasoning of the court was that the mother had not demonstrated that the relocation was in the best interests of the child. The court found that the father's arguments against the move were compelling, particularly regarding the disruption to the father’s relationship with the child. The court held that the mother had not sufficiently addressed the potential harm to the child’s relationship with the father and that the proposed benefits of the relocation did not outweigh these concerns. Consequently, the appeal was dismissed, and the original orders were upheld.

As part of the outcome, the appellant was ordered to pay the respondent's costs of and incidental to the appeal, as agreed or assessed. This decision reinforces the principle that relocation decisions in family law cases must be made with careful consideration of the child's best interests, particularly regarding the impact on parental relationships.

Orders

Orders of the court

1. Appeal against the orders of Judge Scarlett of 12 August 2013 be dismissed.

2. Appellant mother pay the Respondent father’s costs of and incidental to the appeal as agreed or assessed.

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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