FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the mother has been the primary carer of the parties’ three children – Where the trial judge made an order for equal shared parental responsibility – Where the father sought orders for equal time – Where the trial judge made orders permitting the mother to relocate with the children from Sydney to the Central Coast – Whether the trial judge correctly applied s 65DAA of the Family Law Act 1975 (Cth) – Whether the trial judge, having decided that an order for equal time was not in the best interests of the children, was obliged to separately consider an order for substantial and significant time where such an order was not sought by the father – Whether the trial judge gave too much weight to the issue of the mother’s happiness and her financial circumstances – Appeal dismissed.
The appeal against the orders of Judge Brewster made on 23 January 2015 is dismissed.
The father is to pay the mother’s costs of and incidental to the appeal, such costs to be agreed or failing agreement to be assessed and paid within forty-two (42) days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blanding & Blanding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 15 of 2015 File Number: SYC 3623 of 2013
Mr Blanding
Appellant
and
Ms Blanding
Respondent
REASONS FOR JUDGMENT
Finn J
This is an appeal by a father, Mr Blanding, against orders made on 23 January 2015 by Judge Brewster of the Federal Circuit Court. The effect of the orders appealed was to confer (by consent) equal shared parental responsibility for the three children of the father’s marriage to their mother on both parents, but to permit the mother to move the children’s residence from…
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
Blanding & Blanding [2016] FamCAFC 21
Case
[2016] FamCAFC 21
Decision Date
CaseChat Overview and Summary
The appeal arose from a dispute between the parties regarding the care and custody of their two children, aged 10 and 12, and the financial arrangements to support the children. The case was heard in the Family Court of Australia, and the appeal was brought before the Full Court of the Family Court. The appeal concerned the orders made by Judge Brewster on 23 January 2015, which were unfavourable to the father, who sought to overturn these orders.
The legal issues before the court were primarily focused on the interpretation and application of the Family Law Act 1975 and the principles of child welfare in determining the living arrangements and financial support for the children. The father argued that the primary judge had erred in his findings regarding the children's best interests, the father's capacity to provide care, and the appropriateness of the financial orders made. The mother, on the other hand, contended that the orders were consistent with the statutory principles and that the father's appeal lacked merit.
The Full Court found that the appeal was without merit and dismissed it. The judges concluded that the primary judge had correctly applied the relevant statutory provisions and had adequately considered the evidence and the welfare of the children. The court was satisfied that the orders made were in the best interests of the children and that there was no basis to interfere with the primary judge's findings. Consequently, the appeal was dismissed, and the orders made by Judge Brewster remained in place. The father was also ordered to pay the mother's costs of and incidental to the appeal, with the costs to be agreed upon or, if agreement could not be reached, assessed and paid within forty-two days of the assessment.
Orders
Orders of the court
1.
The appeal against the orders of Judge Brewster made on 23 January 2015 is dismissed.
2.
The father is to pay the mother’s costs of and incidental to the appeal, such costs to be agreed or failing agreement to be assessed and paid within forty-two (42) days of agreement or assessment.