BEST & BEST - [2017] FCCA 1684

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEST & BEST

[2017] FCCA 1684

Catchwords:
FAMILY LAW – Interim parenting – relocation – final orders in 2015 for equal shared parental responsibility – mother moved with children in face of father’s opposition to such relocation – father sought order for children’s return to vicinity of previous residence.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:

Goode & Goode (2007) 36 FamLR 422, (2006) FLC 93-286

Keats & Keats [2016] FamCAFC 156
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles (2007) FLC 93-343

Applicant:

MR BEST

Respondent:

MS BEST

File Number:

PAC 5790 of 2015

Judgment of:

Judge Obradovic

Hearing date:

4 July 2017

Date of Last Submission:

4 July 2017

Delivered at:

Parramatta

Delivered on:

7 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

Joseph Grassi & Associates

Appearing for the Respondent:

Ms Ferguson

Solicitors for the Respondent:

McNamara & Associates

PENDING FURTHER ORDERS

By 4pm on 14 July 2017 the Respondent mother shall return the children X born (omitted) 2008 and Y born (omitted) 2011 to within 5 kilometres of the boundary of the City of (omitted).
Following compliance by the Respondent mother with the above order the Respondent mother is restrained from changing the place of residence of the children X born (omitted) 2008 and Y born (omitted) 2011 to any place outside the area referred to in Order 1.
In the event that the Respondent mother has failed to comply with order 1 within the time period stipulated in that order, or breaches order 2, then order 2 of the Orders made on 2 December 2015 is suspended and the children will forthwith thereafter live with the Applicant father.
In the event that pursuant to order 3 the children live with the Applicant father the children will spend time with the respondent mother as arranged and agreed between the parents, but in any case not less than each alternate weekend from 6pm Friday until 6pm Sunday commencing the Friday after the children commence living with the Applicant father.
In the event that the respondent mother complies with order 1 and order 2 or after such time she herself relocates to an area within 5km of the boundary of the City of (omitted) then the children:
(a)During school terms, will be collected by the Applicant father from school every Wednesday and returned to school by the Applicant father the next day;
(b)Will spend time with the Applicant father each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday and the Applicant father shall be responsible for returning the children to school on that following Monday;
(c)Will spend each alternate week of each school holidays with the Applicant father from 9am on Monday until the same time in the following week;
(d)Will spend time with the Applicant father or the Respondent mother (as the case may be):
(i)From 9am on the morning of the…

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: Best and Best [2017] FCCA 1684
Case: [2017] FCCA 1684
Decision Date: 7 July 2017

CaseChat Overview and Summary

The parties to this proceeding were Best & Best, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order for possession of property. The matter came before Obradovic J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the applicants, Best & Best, were entitled to an order for possession of the property. This required the Court to consider the nature of the applicants' interest in the property and the legal basis for their claim to possession.

Obradovic J determined that the applicants had established their right to possession. The reasoning involved an assessment of the evidence presented, which demonstrated that the applicants held a legal interest in the property that entitled them to vacant possession. The Court applied principles of property law relating to the rights of owners or those with a superior legal interest to obtain possession against a party who was in occupation without such a right.

The Court made orders for possession in favour of the applicants, Best & Best.

Orders