ALBERS & HAYMANS - [2018] FCCA 3672

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

MRR v GR [2010] HCA 4

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…

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 ALBERS & HAYMANS

Details

AGLC: ALBERS & HAYMANS [2018] FCCA 3672
Case: [2018] FCCA 3672
Decision Date: 14 December 2018

CaseChat Overview and Summary

In *Albers & Haymans*, the Federal Circuit and Family Court of Australia considered an application for interim parenting orders concerning the time a child would spend with the father, in circumstances where allegations of the father's alcohol intake and associated risk issues were raised. The proceedings also involved an application for injunctive relief to prevent an overseas trip.

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