BENSON & BENSON - [2015] FCCA 2627

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & BENSON

[2015] FCCA 2627

Catchwords:
FAMILY LAW – Arrangements for child aged 8 to spend time with father interstate – allegations by mother child mistreated during previous visit – evidence taken regarding allegations – high conflict parenting relationship – should child travel by air unaccompanied – how to protect child from conflict – child to be informed of outcome and arrangements by letter from the court – best interest.

Legislation:

Family Law Act 1975, s.60CC

Benson & Benson (No.2) [2014] FCCA 2204

Applicant:

MR BENSON

Respondent:

MS BENSON

File Number:

MLC 5232 of 2011

Judgment of:

Judge Brown

Hearing date:

9 September 2015

Date of Last Submission:

9 September 2015

Delivered at:

Adelaide

Delivered on:

9 September 2015

REPRESENTATION

Counsel for the Applicant:

In person by telephone link

Counsel for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Boehm

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of South Australia

ORDERS

The father spend time with the child X born (omitted) 2007 between 26 September and 2 October 2015 at the father’s home in Victoria.
In order to give effect to order 1 hereof the father book and pay for the child to travel by air between Adelaide and Melbourne and return as an unaccompanied minor and advise the mother in writing (which may be in electronic form) of the arrangements including flight numbers and details of arrival and departure seven (7) days prior to travel.
The mother deliver the child to the airline staff at Adelaide with sufficient time to catch the flight nominated by the father.
The father collect the child at Melbourne airport upon his arrival and deliver the child to airline staff at Melbourne airport within sufficient time to catch the flight nominated by him to return to Adelaide.
The mother make an appointment with Mr Kent, the independent children’s lawyer in the week prior to the travel envisaged in orders 1 and 2 hereof so that Mr Kent may advise the child of the arrangements in order 1 hereof and read the following letter attached to these orders from the court to X.
Further consideration of the matter is adjourned to 27 November 2015 at 10:00am to the complete the hearing and submissions.

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

9 September 2015

Dear X,

Hello there, it’s Judge Brown again. Remember, I wrote to you last year. Your mum and dad have been back to see me again to help them sort out what should happen on your school holidays which are coming up soon.

Hey, I saw some photos of you with (omitted) at your dad’s place taken on your last holiday. I saw you with the cows and feeding the chicken. Looked like you were having a good time. I also saw you with Y playing on the computer together.

Your…

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 BENSON & BENSON

Details

AGLC: Benson and Benson [2015] FCCA 2627
Case: [2015] FCCA 2627
Decision Date: 9 September 2015

CaseChat Overview and Summary

In the matter of *Benson & Benson*, heard before Judge Brown, the dispute concerned arrangements for a child, X, born in 2007, to spend time with the father. The court was required to determine the specific arrangements for this period of time, including travel and communication protocols between the parents and the child.

The court's reasoning focused on facilitating the father's time with the child while ensuring the child's welfare and the parents' ability to comply with the orders. This involved detailed provisions for the child's travel between Adelaide and Melbourne as an unaccompanied minor, with the father responsible for booking and paying for the flights and providing the mother with advance notice of the travel arrangements. The orders also stipulated the responsibilities of each parent in facilitating the child's travel to and from the respective airports.

Furthermore, the court directed the mother to arrange for the child to meet with the independent children's lawyer, Mr Kent, prior to the travel. This was to allow Mr Kent to inform the child of the arrangements and to read a letter from the court to X. The court adjourned further consideration of the matter to a later date to complete the hearing and submissions.

Orders

Orders of the court

The father spend time with the child X born (omitted) 2007 between 26 September and 2 October 2015 at the father’s home in Victoria.

In order to give effect to order 1 hereof the father book and pay for the child to travel by air between Adelaide and Melbourne and return as an unaccompanied minor and advise the mother in writing (which may be in electronic form) of the arrangements including flight numbers and details of arrival and departure seven (7) days prior to travel.

The mother deliver the child to the airline staff at Adelaide with sufficient time to catch the flight nominated by the father.

The father collect the child at Melbourne airport upon his arrival and deliver the child to airline staff at Melbourne airport within sufficient time to catch the flight nominated by him to return to Adelaide.

The mother make an appointment with Mr Kent, the independent children’s lawyer in the week prior to the travel envisaged in orders 1 and 2 hereof so that Mr Kent may advise the child of the arrangements in order 1 hereof and read the following letter attached to these orders from the court to X.

Further consideration of the matter is adjourned to 27 November 2015 at 10:00am to the complete the hearing and submissions.

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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