Atkinson & Atkinson (No 2) - [2017] FamCA 544

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON (NO 2)

[2017] FamCA 544

FAMILY LAW – APPLICATION FOR STAY – Where application for stay pending Appeal to Full Court – Interim parenting orders – General principles considered– Stay refused.

Family Law Act 1975 (Cth)

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Atkinson [2017] FamCA 274

K & B (2006) FamCA 848

APPLICANT:

Mr Atkinson

RESPONDENT:

Ms Atkinson

INDEPENDENT CHILDREN’S LAWYER:

Mr Whelan

FILE NUMBER:

PAC

4343

2013

DATE DELIVERED:

31 July 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bateman

SOLICITOR FOR THE APPLICANT:

Kheir Lawyers

SOLICITOR FOR THE RESPONDENT:

Fay Rose Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

That the father’s Amended Application in a Case filed 10 July 2017 be dismissed.
That any application for costs be by way of written submission filed within 28 days from this date with any submissions in response within a further 14 days thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343 of 2013

Mr Atkinson

Applicant

And

Ms Atkinson

Respondent

REASONS FOR JUDGMENT

The father makes application for a stay of orders made 3 May 2017 pending his appeal to the Full Court of this Court following an interim hearing: Atkinson & Atkinson [2017] FamCA 274.
This judgment assumes familiarity with the reasons for judgment delivered.
The context of the interim application is set out in those reasons thus:
3.The mother is presently aged 39 and the father aged 47.
4.The parties married on … 2012 and separated in September 2013.
5.Subsequent to separation litigation commenced in relation to the parenting arrangements for the child when the child was only 11 months old.
6.Subsequent to separation the child was in the primary care of the mother until May 2014. At that time the child was retained by the father and the mother commenced proceedings.
7.On 9 July 2014 interim orders were made for the child to spend time with the mother from 10.00 am Friday until 10.00 am Monday each week and spend time with the father for the remainder of the week. Changeovers were to be affected at the F Town police station.
8.Subsequently, a final hearing as to parenting was conducted over some days in 2016 with final orders being…

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 Atkinson & Atkinson (No 2)

Details

AGLC: Atkinson & Atkinson (No 2) [2017] FamCA 544
Case: [2017] FamCA 544
Decision Date: 31 July 2017

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Foster J, considered an application by the father seeking to set aside a final order made in parenting proceedings. The dispute concerned the father's desire to relocate with the children to Queensland, which had been opposed by the mother. The father's application sought to have the previous final order, which had presumably dealt with the relocation issue, set aside.

The central legal issue before the Court was whether the father had established sufficient grounds to justify setting aside the final parenting order. This required the Court to consider the principles governing the setting aside of final orders in family law matters, particularly in the context of parenting disputes where the welfare of children is paramount. The Court had to determine if there had been a material change in circumstances or if the original order was made in error or was otherwise unjust.

Foster J dismissed the father's application, finding that he had not met the threshold required to set aside the final order. The reasoning applied focused on the stringent requirements for overturning final orders, emphasising the need for compelling evidence of a material change in circumstances or a significant flaw in the original decision-making process. The Court underscored the importance of finality in parenting orders, balanced against the overarching principle of the best interests of the child. The father's application was therefore unsuccessful.

Orders

Orders of the court

That the father’s Amended Application in a Case filed 10 July 2017 be dismissed.

That any application for costs be by way of written submission filed within 28 days from this date with any submissions in response within a further 14 days thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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