Austin and Anor and Dunne - [2016] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTIN & ANOR & DUNNE

[2016] FCCA 1015

Catchwords:
FAMILY LAW – Parenting – where father committed suicide – where paternal grandparents seek orders whereby the young child aged less than 3 live with the paternal grandparents in Sydney and spend time with the mother who lives in (omitted) – where mother is seeking that the application be summarily dismissed – where oral application made for paternal grandparents to spend time with child – where oral application made for child’s name to be removed from airport to enable the mother to travel overseas with child – held that paternal grandparent’s initiating application be dismissed – where no evidence to support their claims – held that mother be permitted to travel overseas with child – held that paternal grandparents spend time with child for a day every two months.

Legislation:

Family Law Act 1975, ss.64B, 65DA

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules2001, r.13.10

Cases cited:

Church & M Overton & Anor [2008] FamCA 953
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
McDonald & Sandler [2012] FamCAFC 191

Applicants:

MR AUSTIN AND MS AUSTIN

Respondent:

MS DUNNE

File Number:

BRC 11585 of 2015

Judgment of:

Judge L. Turner

Hearing date:

19 April 2016

Date of Last Submission:

19 April 2016

Delivered at:

Brisbane

Delivered on:

21 April 2016

REPRESENTATION

Counsel for the Applicants:

Mr Galloway

Solicitors for the Applicants:

Marsdens Law Group

Solicitors for the Respondent:

Mr Cooper of Cooper Family Law

ORDERS

That the paternal grandparent’s Initiating Application filed on 3 December 2015 is hereby summarily dismissed.
That forthwith the child X (who may also be recorded as X) born (omitted) 2013 be removed from the Airport Watch List.
That the mother MS DUNNE born (omitted) 1987 and the child be permitted to travel outside the Commonwealth of Australia from 21 April 2016 to 16 May 2016.
That commencing Saturday 21 May 2016 the paternal grandparents spend time with the child on the third Saturday of every second month from 9:00am to 5:00pm with changeover to occur at McDonald's (omitted) and that time occur with the child at other such times as can be agreed upon between the paternal grandparents and the mother.
That the paternal grandparents file and serve within forty-two (42) days from the date hereof a fresh Initiating Application in respect to the spend time with arrangements only with respect to the child.
That in the event that the paternal grandparents choose not to commence proceedings in accordance with Order (5) then the spend time with Order as provided for in Order (4) shall, upon the expiration of forty-two (42) days from the date hereof, become Final Orders and will issue as such from the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11585…

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.

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Details

Case: [2016] FCCA 1015
Decision Date: 21 April 2016

CaseChat Overview and Summary

This matter concerned an application by the paternal grandparents, Austin and Anor, against the mother, MS Dunne, regarding their grandchild, child X. The dispute centred on the paternal grandparents' desire to have the child placed on an Airport Watch List and to prevent the child from travelling overseas with the mother. The proceedings were heard by Judge L. Turner.

The primary legal issues before the Court were whether the paternal grandparents' application to place the child on an Airport Watch List should be summarily dismissed, and whether the mother and child should be permitted to travel outside of Australia. The Court was also required to determine interim and potentially final arrangements for the paternal grandparents to spend time with the child.

Judge L. Turner dismissed the paternal grandparents' application to place the child on an Airport Watch List, finding it lacked merit. The Court permitted the mother and child to travel overseas as planned. In relation to time spent with the child, the Court made interim orders for the paternal grandparents to spend time with the child on the third Saturday of every second month, with further time to be agreed between the parties. Crucially, the Court ordered the paternal grandparents to file a fresh application within 42 days if they wished to pursue final orders regarding time spent with the child; failing this, the interim orders would become final.

Orders

Orders of the court

That the paternal grandparent’s Initiating Application filed on 3 December 2015 is hereby summarily dismissed.

That forthwith the child X (who may also be recorded as X) born (omitted) 2013 be removed from the Airport Watch List.

That the mother MS DUNNE born (omitted) 1987 and the child be permitted to travel outside the Commonwealth of Australia from 21 April 2016 to 16 May 2016.

That commencing Saturday 21 May 2016 the paternal grandparents spend time with the child on the third Saturday of every second month from 9:00am to 5:00pm with changeover to occur at McDonald's (omitted) and that time occur with the child at other such times as can be agreed upon between the paternal grandparents and the mother.

That the paternal grandparents file and serve within forty-two (42) days from the date hereof a fresh Initiating Application in respect to the spend time with arrangements only with respect to the child.

That in the event that the paternal grandparents choose not to commence proceedings in accordance with Order (5) then the spend time with Order as provided for in Order (4) shall, upon the expiration of forty-two (42) days from the date hereof, become Final Orders and will issue as such from the Court.

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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