Atuk and Atuk - [2017] FamCA 441

FAMILY COURT OF AUSTRALIA

ATUK & ATUK

[2017] FamCA 441

FAMILY LAW – CHILDREN – TRAVEL – Where the mother seeks orders that she be allowed to travel overseas with the children – Where destination subject to Department of Foreign Affairs and Trade travel warnings – Where father opposes travel – Consideration of relevant matters – Where risk is determining factor – Where application dismissed.

Family Law Act 1975 (Cth) 60CC

Atuk & Atuk [2016] FamCA 283
Banks& Banks[2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
In the Marriage of Kuebler (1978) FLC 90-434
Line and Line [1996] 21 Fam LR 259
Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

SCVG & KLD (2014) FamCAFC 42

APPLICANT:

Ms Atuk

RESPONDENT:

Mr Atuk

INDEPENDENT CHILDREN’S LAWYER:

Ms Truong

FILE NUMBER:

PAC

4209

2014

DATE DELIVERED:

27 June 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hawach of Mcauley Hawach Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Atila of Atila Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Truong of Legal Aid NSW Bankstown Family Law

Orders

That the mother’s application filed 8 March 2017 be dismissed
That any application for costs be made by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served 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 Atuk & Atuk 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 4209 of 2014

Ms Atuk

Applicant

And

Mr Atuk

Respondent

REASONS FOR JUDGMENT

The discrete application for determination is the question of the proposed overseas travel for the two children of the parties’ relationship J aged 14 and K aged six.
The application is made in the context of ongoing property and parenting proceedings between the parties that commenced in 2014.
On 29 April 2016 various interim orders were made by consent and following determination at an interim hearing. Those orders provided relevantly as follows:
IT IS FURTHER ORDERED BY CONSENT THAT:
1.Each parent is restrained from:
a.Making any negative remarks about the other parent or members of that parent’s family to the children or in the presence or hearing of the children;
b.Discussing these proceedings or any issues in dispute between the parties with the children…

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 Atuk and Atuk

Details

AGLC: Atuk and Atuk [2017] FamCA 441
Case: [2017] FamCA 441
Decision Date: 27 June 2017

CaseChat Overview and Summary

In the matter of *Atuk and Atuk*, Foster J of the Federal Circuit Court of Australia considered an application made by the mother on 8 March 2017. The specific nature of the dispute between the parties is not detailed in the provided text, but the outcome indicates it concerned a family law matter.

The central legal issue before the court was whether to grant the mother's application filed on 8 March 2017. The court was required to determine the merits of this application and decide whether it should be dismissed or upheld.

Foster J dismissed the mother's application. The court's reasoning for this decision is not elaborated upon in the provided text. Following the dismissal of the application, the court made orders regarding the process for any subsequent applications for costs, requiring written submissions from the parties within specified timeframes before judgment would be reserved.

Orders

Orders of the court

That the mother’s application filed 8 March 2017 be dismissed

That any application for costs be made by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.