FAMILY LAW – APPEAL – CHILDREN – Interim international relocation – Where both parents are currently in Australia and the child is living with the maternal grandmother in Thailand – Where the mother appealed against an interim order that the child be brought to Australia to live with her – The father’s solicitor conceded that the mother was denied procedural fairness because neither party sought an order for the child to live with the mother in Australia and the primary judge did not give notice of her intention to make that order – Appeal allowed – Costs certificates issued.
FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the mother sought that the child remain in Thailand and that the interim injunction restraining her from leaving Australia be discharged – Where the father sought that the child be brought to Australia to live with the mother and that the interim injunction remain in place to ensure the mother remains amenable to the jurisdiction of the Court, even if the child is permitted to remain in Thailand – Where the child has special needs and is well settled in Thailand – It is in the child’s best interests to remain in Thailand pending trial – Injunction discharged – Order for the father to spend time with the child in Thailand and communicate by Skype.
FAMILY LAW – APPEAL – CHILDREN – Giving reasons in determining an interim parenting dispute – It is essential that the parties’ proposals be clearly identified and separately evaluated, but it is unnecessary to discuss every s 60CC consideration.
Paragraphs 3.1 to 3.7, 7 and 8 of the orders made by the Honourable Justice Cleary on 23 January 2015 be discharged.
Paragraphs 7 to 9 of the orders made in the Federal Circuit Court on 9 December 2014 be discharged.
Paragraph 1 of the minute attached to the orders made…
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] FamCAFC 36
Case
[2015] FamCAFC 36
Decision Date
CaseChat Overview and Summary
Banks & Banks concerned an appeal against an interim order that a child, who was living with the maternal grandmother in Thailand, be brought to Australia to live with the mother. The father’s solicitor conceded that the mother was denied procedural fairness because neither party sought an order for the child to live with the mother in Australia and the primary judge did not give notice of her intention to make that order. The mother appealed against this order and sought that the child remain in Thailand and that the interim injunction restraining her from leaving Australia be discharged. The father sought that the child be brought to Australia to live with the mother and that the interim injunction remain in place to ensure the mother remains amenable to the jurisdiction of the Court, even if the child is permitted to remain in Thailand.
The court was required to decide whether the child should remain in Thailand or be brought to Australia to live with the mother. The court had to consider the best interests of the child, which included the child's special needs and the fact that the child was well settled in Thailand. The court also had to consider whether it was in the child's best interests to remain in Thailand pending trial. The court concluded that it was in the child's best interests to remain in Thailand pending trial.
The court allowed the appeal and discharged the orders that the child be brought to Australia to live with the mother and that the interim injunction remain in place. The court ordered that the child live with the mother or her nominee in Thailand and that the father spend unsupervised time with the child in Thailand and communicate by Skype. The court also ordered that the mother’s name be removed from the Family Law Watch List / PACE Alert System so she is permitted to leave Australia. The court granted a costs certificate to both parties.
The orders of the court included allowing the appeal, discharging certain orders made by the primary judge and the Federal Circuit Court, permitting the child to live in Thailand with the mother or her nominee, permitting the father to spend unsupervised time with the child in Thailand and communicate by Skype, removing the mother's name from the Family Law Watch List / PACE Alert System, and granting a costs certificate to both parties.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Paragraphs 3.1 to 3.7, 7 and 8 of the orders made by the Honourable Justice Cleary on 23 January 2015 be discharged.
3.
Paragraphs 7 to 9 of the orders made in the Federal Circuit Court on 9 December 2014 be discharged.
4.
Paragraph 1 of the minute attached to the orders made in the Federal Circuit Court of Australia on 12 December 2014 be discharged.
5.
The name of the mother MS BANKS be removed from the Family Law Watch List / PACE Alert System by officers or agents of the Australian Federal Police so she is permitted to leave the Commonwealth of Australia.
6.
Until further order, the child L born January 2010 live with the appellant or her nominee.
7.
Until further order, the respondent spend unsupervised time with the child in Thailand as agreed with the appellant, provided the respondent gives the appellant three days’ notice in writing of his intention to spend time.
8.
Until further order, the appellant shall permit the respondent to communicate with the child by Skype on each Monday, Tuesday, Wednesday, Friday and Saturday between 3.00 pm and 6.00 pm Thailand time.
9.
The appellant and respondent have liberty to apply to a judge of the Family Court of Australia for further definition of the terms on which the respondent spends time with and communicates with the child.
10.
There be no orders as to costs.
11.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
12.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.