AINSWORTH & YUEN (No.3)

[2020] FCCA 3192

FEDERAL CIRCUIT COURT OF AUSTRALIA

AINSWORTH & YUEN (No.3) [2020] FCCA 3192

Catchwords:
FAMILY LAW – Parenting – appeal filed – stay application.

Legislation:

Family Law Act 1975 (Cth), ss.60CC

Cases cited:

Clemett & Clemett (1981) FLC 91-013
Federal Commissioner of Taxation v Myer Emporium Limited (1986) 64 ALR 325

M v M (1988) 166 CLR 69; FLC 91-979

Applicant: MR AINSWORTH

Respondent: MS YUEN

File Number: BRC 4054 of 2016

Judgment of: Judge Coates

Hearing date: 7 October 2020

Date of Last Submission: 7 October 2020

Delivered at: Brisbane

Delivered on: 7 October 2020

REPRESENTATION

Counsel for the Applicant: Mr H. Cremin

Respondent: Self-represented

Solicitors for the Independent Children's Lawyer: Jenny Boulton Solicitor

ORDERS

1. That the Application in a Case filed 25 September 2020 be dismissed.

2. That the Independent Children’s Lawyer’s costs of today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Ainsworth & Yuen (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4054 of 2016

MR AINSWORTH

Applicant

And

MS YUEN

Respondent

REASONS FOR JUDGMENT

This judgment was delivered orally and has been corrected for written comprehension.

1. Final orders for a young child, X, were made after a trial which ran over 14, 15 and 16 July 2020.

2. The effect of the orders was to change the circumstances of the child so that she lived with the mother and had much more time with the father.

3. I will just describe it in those terms.

4. An order for equal shared parental responsibility was made.

5. The orders for the child increase her time with the father, against the mother’s wishes.

6. An appeal was filed in the matter on 13 August 2020.

7. A stay application was made on 25 September 2020.

8. The stay application was brought by the mother who seeks a return to orders made on 15 November 2018 as stated in her stay application and I have been provided with a document, confirming that the mother also, seeks an order for sole parental responsibility and that the father be restrained from contacting health professionals to give contrary instructions to those of the mother or attempting to deny the child, X, from having all necessary medical or health procedures.

9. The father opposes the stay and the Independent Children’s Lawyer opposes the stay.

10. The grounds of appeal are 11 in number and I am going to paraphrase them:

    a)That I failed to deliver adequate reasons;

    b)That I erred in the application of the s.60CC(2) of the Family Law Act 1975 (“the Act”) considerations;

    c)That I did not deal properly with family violence in the reasons;

    d)That I erred in the understanding of the evidence;

    e)That I erred in refusing to make findings with regard to family violence;

    f)I erred in regard to the making of parenting orders when I had not determined the magnitude of the risk presented by the father’s alcohol usage – this says abuse, but I determined that I…