BLACK & COOLEY (No.2) - [2018] FCCA 2974

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLACK & COOLEY (No.2)

[2018] FCCA 2974

Catchwords
FAMILY LAW – Parenting – mother sought sole parental responsibility, a reduction in the father’s time with the children and permission to relocate – not in the best interests of the children – father fulfilling parenting obligations – no evidence to the contrary – previous orders made remain in full force and effect.

Legislation

Family Law Act1975, s.60CC(3)

Cases cited

AKD16 v Minister for Immigration & Anor [2016] FCCA 3026

Cooley & Black [2017] FCCA 2946

Galea v Galea (1990) 19 NSWLR 263

Hawchar v Dasreef Pty Ltd (2011) 243 CLR 588

Kousal v Tack (2003) FLC 93-134

Re F (Litigants in Person Guidelines) (2001) FLC 93-072

Applicant:

MS BLACK

Respondent:

MR COOLEY

File Number:

MLC 10022 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

28 August 2018

Date of Last Submission:

11 September 2018

Delivered at:

Melbourne

Delivered on:

24 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr M W S Duckett

Solicitors for the Applicant:

None

Counsel of the Respondent:

Mr D A Mort

Solicitors for the Respondent:

Carew Counsel Pty Ltd

ORDERS

The orders made on 29 November 2017 remain in full force and effect.
The mother’s applications –
(a)to relocate with the children to Canberra; and
(b)for a contraction of the time the father has with the children,
are refused.
All extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Black & Cooley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10022 of 2015

MS BLACK

Applicant

And

MR COOLEY

Respondent

REASONS FOR JUDGMENT

Introduction

On 29 November 2017, I gave judgment in this proceeding ordering a regime for equal shared parental responsibility for two children born to the parties, for the children to live with the mother and to spend time with the father subject to a number of preconditions.
With a view to ascertaining that those orders were being followed, I arranged for this proceeding to be listed on 24 August 2018. On that day Mr Duckett of counsel, who appeared for the father during the trial on 2 and 3 October 2017, again represented the father. Mr Mort of counsel appeared for the mother. They were unable to reach agreement on the fate of the mother’s application filed on 12 February 2018 for, among other things, orders permitting her to relocate with the children to Canberra and for the father’s time with the children as ordered on 29 November 2017 to be reduced.
On a day otherwise allocated to me as leave, being 28 August 2018, I sat on this case and heard the contested application brought by the mother. Both parents gave evidence as did a family consultant.
As with all aspects of this litigation, a staggering amount of antagonism continues to pervade the relationship between the mother and the father. Their capacity to agree…

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 BLACK & COOLEY (No.2)

Details

AGLC: BLACK & COOLEY (No.2) [2018] FCCA 2974
Case: [2018] FCCA 2974
Decision Date: 24 October 2018

CaseChat Overview and Summary

In the Family Court of Australia, His Honour Judge Wilson considered a dispute between a mother and father concerning parenting arrangements for their children. The mother sought orders for sole parental responsibility, a reduction in the father's time with the children, and permission to relocate with the children to Canberra.

The central legal issues before the court were whether it was in the best interests of the children for the mother to have sole parental responsibility, for the father's time with the children to be reduced, and for the mother to relocate with the children to Canberra.

His Honour Judge Wilson found that the father was fulfilling his parenting obligations and that there was no evidence to the contrary. Consequently, the court determined that the mother's applications were not in the best interests of the children. The court ordered that the previous orders made on 29 November 2017 remain in full force and effect, and refused the mother's applications for relocation and a contraction of the father's time with the children. All other extant applications were dismissed.

Orders

Orders of the court

The orders made on 29 November 2017 remain in full force and effect.

The mother’s applications –

(a) to relocate with the children to Canberra; and

(b) for a contraction of the time the father has with the children,

are refused.

All extant applications are otherwise dismissed.

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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