Attwill & Marden - [2018] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTWILL & MARDEN

[2018] FCCA 1401

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 5, 8 & 10 – unilateral relocation of children from Adelaide to Sydney by mother – father seeks return of children to metropolitan area of Adelaide – application by mother for change of venue and for children to remain in her care in Sydney area – mother alleges father has been violent towards her and has exposed children to family violence – mother alleges father has abused children – father denies all allegations – parties in dispute as to previous care arrangements for children – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975, ss.4; 4AB; 60B; 60CA; 60CC; 61DA; 65DAA

Federal Circuit Court Rules 2001, r.8.01(2)

Cases cited:
Cowling v Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
AMS & AIF (1999) FLC 92,852
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66

Applicant:

MR ATTWILL

Respondent:

MS MARDEN

File Number:

ADC 4580 of 2017

Judgment of:

Judge Brown

Hearing date:

24 May 2018

Date of Last Submission:

24 May 2018

Delivered at:

Adelaide

Delivered on:

30 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Lewis

Solicitors for the Applicant:

Legal Services Commission of South Australia

Counsel for the Respondent:

Ms Spence

Solicitors for the Respondent:

Franklin Legal

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The children [X] born 2007, [Y] born 2009 and [Z] born 2012 live with the mother and she be permitted to live in Sydney.
The matter be transferred to the Federal Circuit Court of Australia, Sydney Registry.

IT IS NOTED that publication of this judgment under the pseudonym Attwill & Marden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4580 of 2017

MR ATTWILL

Applicant

And

MS MARDEN

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Attwill “the father” and Ms Marden “the mother” are the parents of three children – [Z] born 2012; [Y] born 2009; and [X] born 2007.
These reasons relate to interim arrangements for the care of the three children concerned, particularly whether in the medium term, they should continue to live with their mother in Sydney or be returned to live in Adelaide, either in the sole care of their father, or if the mother elects to return to Adelaide, with her, in order that they will be able to pursue some form of relationship with their father.
It is the mother’s case that she was compelled to flee an abusive and dangerous relationship, which left her no alternative but to move to Sydney, far away from the father, where she feels safe and protected. On the other hand, the father asserts that the mother’s claims of her and…

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 Attwill & Marden

Details

AGLC: Attwill and Marden [2018] FCCA 1401
Case: [2018] FCCA 1401
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the matter of *Attwill & Marden*, heard before Judge Brown, the dispute concerned parenting arrangements for three children, [X] born in 2007, [Y] born in 2009, and [Z] born in 2012. The court was required to determine where the children should live and whether the mother should be permitted to relocate to Sydney with them.

The central legal issue before the court was the best interests of the children in relation to their living arrangements and the proposed relocation. This involved assessing the factors relevant to determining the children's welfare and determining whether the proposed arrangements would promote their best interests.

Judge Brown ordered that the children [X], [Y], and [Z] live with the mother and that she be permitted to live in Sydney. The court further ordered that the matter be transferred to the Federal Circuit Court of Australia, Sydney Registry, for any further proceedings.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER:

The children [X] born 2007, [Y] born 2009 and [Z] born 2012 live with the mother and she be permitted to live in Sydney.

The matter be transferred to the Federal Circuit Court of Australia, Sydney Registry.

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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