BANKS & BANKS - [2015] FamCA 66

FAMILY COURT OF AUSTRALIA

BANKS & BANKS

[2015] FamCA 66

FAMILY LAW – CHILDREN – Interlocutory Application – where the father sought the return of the child who was living in Thailand with the mother and maternal grandmother – where the mother had returned to Australia without the child and was now restrained from returning to Thailand by an interim court order – child’s views to be ascertained – family report ordered – where the mother is to cause the child to be brought from Thailand to Australia.

FAMILY LAW – CHILDREN – Interlocutory Application – best interests – parental responsibility – where the child has meaningful relationships with both parents and both parents have the capacity to meet the needs of the child – parties to have equal shared parental responsibility – child to live with the mother in Australia – child to spend time with the father each weekend after two initial introductory periods.

Family Law Act 1975 (Cth), ss 60CC, 62B, 65DA

Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422

APPLICANT:

Mr Banks

RESPONDENT:

Ms Banks

FILE NUMBER:

SYC

7678

2014

DATE DELIVERED:

23 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATE:

23 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Christopher Mackay Lawyer

SOLICITOR FOR THE RESPONDENT:

VCD Lawyers

Orders

That the Orders of the Local Court … made 27 July 2010 and issued on 9 August 2010 are discharged.
That Orders 2-8 inclusive made in the Federal Circuit Court on

12 December 2014 are discharged.

(3.1)That the mother cause the child L born … 2010 (“the child”) to be brought from Thailand to Australia no later than 20 February 2015 and in the event that the mother is unable to arrange for and nominate a person to bring the child to Australia, then the father may arrange and pay for an airline nanny to accompany the child to Australia.
(3.2)That the father pay the return airfare of the person bringing the child to Australia and the child’s airfare to Australia economy class.
(3.3)That the mother shall notify the father of the name of the person bringing the child to Australia or her inability to arrange such a person and the date of preferred departure, such notice to be given within 7 days of the date of these Orders.
(3.4)That the father notify the mother of the proposed travel arrangements no later than 7 days prior to the date of departure.
(3.5)That the mother do all necessary things and give all necessary directions to ensure that the adult travelling with the child brings with him or her the child’s passport, his Australian nationality papers (at least three pages) and the birth certificate for the child.
(3.6)That the mother deliver the documents referred to in order 3.5 herein to the father when the child arrives in Australia and the father in turn shall deliver those documents to his solicitor, to be held by him pending written agreement…

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

AGLC: BANKS & BANKS [2015] FamCA 66
Case: [2015] FamCA 66
Decision Date: 23 January 2015

CaseChat Overview and Summary

In the matter of BANKS & BANKS, Cleary J of the Family Court of Australia considered an interlocutory application concerning the welfare of a child. The dispute involved the father seeking the return of the child, who was residing in Thailand with the mother and maternal grandmother. The mother had returned to Australia without the child and was subject to an interim court order preventing her return to Thailand.

The court was required to determine the best interests of the child, considering the child's meaningful relationships with both parents and each parent's capacity to meet the child's needs. The court also needed to ascertain the child's views and make orders regarding parental responsibility, the child's living arrangements, and time spent with each parent.

Cleary J reasoned that both parents shared equal responsibility for the child, acknowledging their respective capacities and the child's relationships. The court ordered that the child live with the mother in Australia and spend time with the father on weekends after initial introductory periods. Crucially, the mother was ordered to arrange for the child to be brought from Thailand to Australia by a specified date, with provisions for the father to facilitate this if necessary. The court also ordered the father to pay a sum to the mother for accommodation and directed that a Family Report be prepared, with consideration to be given to appointing an Independent Children's Lawyer.

Orders

Orders of the court

That the Orders of the Local Court … made 27 July 2010 and issued on 9 August 2010 are discharged.

That Orders 2-8 inclusive made in the Federal Circuit Court on

12 December 2014 are discharged.

(3.1) That the mother cause the child L born … 2010 (“the child”) to be brought from Thailand to Australia no later than 20 February 2015 and in the event that the mother is unable to arrange for and nominate a person to bring the child to Australia, then the father may arrange and pay for an airline nanny to accompany the child to Australia.

(3.2) That the father pay the return airfare of the person bringing the child to Australia and the child’s airfare to Australia economy class.

(3.3) That the mother shall notify the father of the name of the person bringing the child to Australia or her inability to arrange such a person and the date of preferred departure, such notice to be given within 7 days of the date of these Orders.

(3.4) That the father notify the mother of the proposed travel arrangements no later than 7 days prior to the date of departure.

(3.5) That the mother do all necessary things and give all necessary directions to ensure that the adult travelling with the child brings with him or her the child’s passport, his Australian nationality papers (at least three pages) and the birth certificate for the child.

(3.6) That the mother deliver the documents referred to in order 3.5 herein to the father when the child arrives in Australia and the father in turn shall deliver those documents to his solicitor, to be held by him pending written agreement of the parties otherwise or further order of the court.

(3.7) That the father and, if wished, his parents, attend at the airport to meet the child from Thailand and the mother to facilitate the reunification of the child, father and paternal grandparents on that day.

That the father shall within 7 days pay to the mother directly or to her solicitor the sum of $2,000 to enable her to establish suitable accommodation for the child with her in Australia.

That a copy of these Orders and Ex Tempore Reasons for judgment be forwarded by a Registrar of this Court to the Registrar of the Central Authority of Australia for the Hague Convention.

IT IS ORDERED PENDING FURTHER ORDER

That the parties have equal shared parental responsibility for the child.

That the child live with the mother in Australia.

That the child spend time and communicate with the father as agreed between the parties, but failing agreement as follows:

(a) For 2 periods of time from 10.00 am to 2.00 pm on non-consecutive days during the first week that the child is in Australia; and thereafter

(b) Each weekend from Friday at 4.00 pm to Sunday at 5.00 pm commencing the first Friday in March 2015.

That the father may arrange an appointment for the child with Dr A or any alternate paediatrician and shall consult the mother in advance as to a convenient date and time for an appointment to enable the mother to bring the child to the appointment and participate if she wishes in the consultation.

IT IS ORDERED BY CONSENT

10.

That each party is to do all acts and things necessary to ensure the renewal of the child’s Australian passport.

IT IS DIRECTED

11.

That the parties, the child, the paternal grandparents (and the maternal grandparents in person or by phone from Thailand) attend an interview for a Family Report on 21 May 2015 NOTING THAT a Thai interpreter will be required for some or all of the maternal family including, possibly, the child.

12.

That the proceedings are adjourned for mention to 21 July 2015 at 9.30 am in the Sydney Registry.

13.

That on the adjourned date consideration will be given to the appointment of an Independent Children’s Lawyer to represent the interests of the child.

14.

That the date of 13 April 2015 be vacated.

15.

That pursuant to s 65DA(2) and s 62B of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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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