Appleby & Appleby - [2015] FamCA 138

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY

[2015] FamCA 138

FAMILY LAW – CHILDREN – interim parenting – where the mother has unilaterally taken the children to Queensland – where the mother seeks to relocate to Queensland – where the mother seeks sole parental responsibility – where the father opposes the orders sought by the mother – where if permitted to relocate on an interim basis would in effect determine the matter also on a final basis – protection from harm – best interests of the children.

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA

Goode and Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

George and George [2013] FamCAFC 182

Dieter & Dieter [2011] FamCAFC 82

APPLICANT:

Ms Appleby

RESPONDENT:

Mr Appleby

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

5724

2014

DATE DELIVERED:

17 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

16 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cantrall

SOLICITOR FOR THE APPLICANT:	Mahony Family Lawyers
SOLICITOR FOR THE RESPONDENT:	Mr Halliday of Marsdens Law Group
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Hafey of Legal Aid NSW Parramatta Family Law

Orders

The children are to live with the mother in Sydney.
The mother is to immediately re-enrol the children in Suburb B Primary school, and the children are to commence attending at that school no later than within seven days of this order.
The application with respect to the father’s time with the children is adjourned to the first day in the Less Adversarial Trial which is to be fixed to occur as soon as practicable after the preparation of a Children’s and Parents Issues Assessment by the Family Consultant.
The father is to undergo a urinalysis test in respect of his cannabis use within 24 hours of being notified by the Independent Children’s Lawyer of the requirement that he undertake such testing.
(a)The Independent Children’s Lawyer may request that father undertake such tests upon 24 hours’ notice on no more than one (1) occasion per month.
(b)Such testing is to be at the father’s expense in its entirety.
(c)The test results are to be made available to the Independent Children’s Lawyer immediately after the test has been concluded and the results are known.
(d)In the event the father does not undertake the test within the time specified then the matter may be relisted upon forty-eight (48) hours’ notice by the Independent Children’s Lawyer and the father will be required to provide compelling reasons why he did not take the test and why time with the children should not be suspended.
The parties are to participate in the Child Responsive Program including attending all meetings fixed by the Family Consultant and ensuring that the children are to attend all meetings as instructed by the Family Consultant.

Notation

An appointment has been made for the parties’ attendance upon a Family Consultant at 9:00am on 5 May 2015 at the Chid Dispute Services in Parramatta. Both…

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 Appleby & Appleby

Details

AGLC: Appleby & Appleby [2015] FamCA 138
Case: [2015] FamCA 138
Decision Date: 17 February 2015

CaseChat Overview and Summary

In the matter of Appleby & Appleby, Hannam J of the Family Court of Australia considered an application concerning the living arrangements and time spent with children. The dispute involved the parents' arrangements for their children, with specific attention to the children's schooling and the father's time with them.

The court was required to determine the primary residence of the children, the immediate educational arrangements for them, and the conditions under which the father would have time with the children. Further issues included the father's cannabis use and its implications for his time with the children, as well as the participation of both parents and children in mandated programs.

Hannam J ordered that the children live with the mother in Sydney and be immediately re-enrolled in Suburb B Primary school. The father's application regarding his time with the children was adjourned, pending a Children’s and Parents Issues Assessment by a Family Consultant. The father was ordered to undergo urinalysis testing for cannabis use within 24 hours of notification by the Independent Children’s Lawyer, with the costs of such testing to be borne by him. The court also mandated that both parents and children participate in the Child Responsive Program and attend all meetings as directed by the Family Consultant.

Orders

Orders of the court

The children are to live with the mother in Sydney.

The mother is to immediately re-enrol the children in Suburb B Primary school, and the children are to commence attending at that school no later than within seven days of this order.

The application with respect to the father’s time with the children is adjourned to the first day in the Less Adversarial Trial which is to be fixed to occur as soon as practicable after the preparation of a Children’s and Parents Issues Assessment by the Family Consultant.

The father is to undergo a urinalysis test in respect of his cannabis use within 24 hours of being notified by the Independent Children’s Lawyer of the requirement that he undertake such testing.

(a) The Independent Children’s Lawyer may request that father undertake such tests upon 24 hours’ notice on no more than one (1) occasion per month.

(b) Such testing is to be at the father’s expense in its entirety.

(c) The test results are to be made available to the Independent Children’s Lawyer immediately after the test has been concluded and the results are known.

(d) In the event the father does not undertake the test within the time specified then the matter may be relisted upon forty-eight (48) hours’ notice by the Independent Children’s Lawyer and the father will be required to provide compelling reasons why he did not take the test and why time with the children should not be suspended.

The parties are to participate in the Child Responsive Program including attending all meetings fixed by the Family Consultant and ensuring that the children are to attend all meetings as instructed by the Family Consultant.

Notation

An appointment has been made for the parties’ attendance upon a Family Consultant at 9:00am on 5 May 2015 at the Chid Dispute Services in Parramatta. Both parents and children are required to attend

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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