Attwood & Attwood

Case [2022] FedCFamC1F 6

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Attwood & Attwood [2022] FedCFamC1F 6

File number(s): SYC 7527 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 14 January 2022
Catchwords: FAMILY LAW – INTERIM PARENTING – Urgent circumstances in which the child is in Australia without a parent – Where the mother is currently in the United Kingdom and the father is in Country L – Impression that neither parent wishes to return to Australia on a long-term basis – Where child’s name is on the Family Law Watch List – Where it is common ground that the child will travel to Country L if permitted to travel – Order for child’s name to be removed from Family Law Watch List.
Legislation:

Family Law Act 1975 (Cth) ss 34, 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 91B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.03
Cases cited:

Bennett v Bennett (2001) FLC 93-088; [2001] FamCA 462

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17

Flanagan and Handcock (2001) FLC 93-074; [2000] FamCA 150

Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

In re Boaler [1915] 1 KB 21

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29; [1996] HCA 4
Division: Division 1 First Instance
Number of paragraphs: 55
Date of hearing: 12 January 2022 and 14 January 2022
Place: Sydney (via videoconference)
Counsel for the Applicant: Mr Othen
Solicitor for the Applicant: Mr Katsikaris of Katsikaris Family Lawyers
Counsel for the Respondent: Mr O’Dwyer SC
Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd
Solicitor for the Independent Children's Lawyer: Ms Norris of Legal Aid NSW

ORDERS

SYC 7527 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ATTWOOD

Applicant
AND:

MR ATTWOOD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 JANUARY 2022

THE COURT ORDERS THAT:

1.Order 4 of the orders made on 14 December 2020 is discharged.

2.The child, X born … 2007, be permitted to travel overseas, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said child from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court…

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Attwood & Attwood [2022] FedCFamC1F 6
Case
[2022] FedCFamC1F 6
Decision Date

CaseChat Overview and Summary

The case of Attwood & Attwood involved a dispute between parents regarding the care and placement of their child. The matter was brought before the Family Court of Australia, where the parents sought different outcomes concerning the child's residence and contact arrangements. The father wished for the child to reside with him in Country L, while the mother preferred the child to stay in Australia.

The primary legal issue the Court had to decide was the best placement for the child, considering the child's welfare and the parents' respective positions. The Court also needed to consider the potential for future litigation and the possibility of the parents reaching agreements regarding the child's upbringing. Additionally, the Court had to address the child's need for therapy and the feasibility of such therapy in either Australia or Country L.

In reaching its decision, the Court took into account the extensive litigation history of the matter, which suggested that any order made was unlikely to prevent further legal disputes. The Court emphasised the importance of making an order that minimised the likelihood of additional proceedings concerning the child. Despite reservations about the parents' ability to reach agreements, the Court believed that the child's best interests would be served by allowing her to reside with her father in Country L, where she could maintain a relationship with both parents. The Court also noted that therapy could be effectively conducted in Country L, similar to Australia, and that the child's views were to be considered in the decision-making process.

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

The Court must aspire to make an order that is the least likely to lead to the institution of further proceedings in relation to the child. The litigation history of this matter suggests that any order made is unlikely to avoid further litigation. In any event, these are interim orders, not final orders, and this matter remains listed for hearing.CONCLUSION Having regard to the material before the Court, and to the matters set out above, this Court does not believe that it is in the best interests of this child to remain in Australia in a context where neither parent is prepared to return here for other than what is in reality a fleeting visit. This child’s best opportunity to continue her relationship with her parents is in Country L. For the time being it is the safest place for her. Allowing her to travel to Country L to be with her father will be consistent with her views. It will provide the most meaningful opportunity for a relationship with both parents. There is already an order in place for the child to live with her father, and to spend time with her mother as agreed. The Court has reservations about the ability of the parents to reach agreement about most matters relating to this child. The Court had contemplated making orders for the child to spend time with her mother in Country L, but none of the proposals before the Court addressed this. The proceedings are still on foot in this Court, and thus it is not out of the question for the parents to seek orders in relation to this issue, if they are unable to agree. The evidence refers to the need for therapy in order to facilitate the child’s relationship with her mother. That can take place as effectively in Country L, as it can in Australia.

Ratio Decidendi

Legal Principle Established

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