FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALBERS & HAYMANS | [2018] FCCA 3672 |
| Catchwords: FAMILY LAW – Parenting – interim orders – time with the father – alleged alcohol intake issues – risk issues – injunctive relief – overseas trip – costs. |
| Legislation: Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA, 68B |
| Cases cited: Goode & Goode [2006] FamCA 1346 Redmond & Redmond [2014] FamCAFC 155 SS & AH [2010] FamCAFC 13 Banks & Banks [2015] FamCAFC 36 M & K[2007] FMCAfam 26 Stott & Holgar & Anor [2017] FamCAFC 152 R & R: Children’s Wishes (2000) FLC 93-000 Salah & Salah [2016] FamCAFC 100 Harridge & Harridge [2010] FamCA 445 Theophane & Hunt [2014] FamCA 1038 Sieling & Sieling (1979) FLC 90-627 L & T (1999) FLC 92-875 |
| Applicant: | MS ALBERS |
| Respondent: | MR HAYMANS |
| File Number: | SYC 1204 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 4 December 2018 |
| Date of Last Submission: | 4 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | First Choice Family Lawyers |
| Counsel for the Respondent: | Mr Watkins |
| Solicitors for the Respondent: | GA Lawyers |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Orders 3 and 4 of the orders made on 30 April 2018 be discharged.
[X] born 2006 and [Y] born 2009, together described as “the children”, spend time with the father as follows:
(a)During the children’s school term:
(i)Each alternate weekend from after school (or 3.00pm) on Friday to before school on Monday; and
(ii)Each other week from after school (or 3.00pm) on Wednesday to before school on Thursday; and
(iii)Such other times as agreed between the parties in writing.
There be no order, in respect of school holidays in 2019 to the effect that order 2 above applies during those time periods.
In the event that the children are not already spending time with the father on the following days, the mother’s time with the children shall be suspended and the father shall spend time with the children as follows:
(a)By consent, from 11.00am Christmas Eve until 11.00am Christmas Day in 2018.
(b)From 3.00pm Good Friday until 3.00pm Easter Sunday in 2019.
By consent, each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.
By consent, for the purpose of changeover the father shall collect the children from the mother’s residence at the commencement of his time, and the father shall deliver the children to the mother’s residence at the conclusion of his time.
By consent, the parties shall have telephone, Skype and/or Facetime communication with the children at least once a day before 7.00pm when the children are not in their care.
By consent, neither party will unreasonably prevent the children from telephoning the other parent and each parent will facilitate, at all times, the children’s communication with the other parent.
By consent, each parent may receive from the…
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- [2018] FCCA 3672
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CaseChat Overview and Summary
The primary legal issues before the court were whether to make interim orders for the child to spend time with the father, and whether to grant injunctive relief to restrain the father from taking the child overseas. The court was required to assess the best interests of the child in light of the contested allegations and the potential risks involved.
Kemp J applied the principles governing interim parenting orders, which require the court to consider the welfare and best interests of the child as the paramount consideration. The court weighed the evidence presented regarding the father's alleged alcohol consumption and its potential impact on the child's safety and well-being against the importance of maintaining the child's relationship with both parents. The court also considered the threshold for granting injunctive relief, which typically involves assessing the risk of irreparable harm or prejudice to the child if the overseas travel were permitted.
The court made specific interim orders regarding the child's time with the father, balancing the need for protection with the child's right to a relationship with both parents. Injunctive relief was also granted in a manner that addressed the court's concerns about the child's welfare.
Orders
Orders of the court
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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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