Bourke and Alves - [2014] FCCA 2680

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOURKE & ALVES

[2014] FCCA 2680

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – relocation – where mother seeks to relocate child’s residence from Sydney to Adelaide – parental responsibility – equal shared parental responsibility – best interests of the child – child aged 7 years 11 months.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mazorski & Albright [2007] FamCA 250; (2008) 37 Fam LR 518

Applicant:

MR BOURKE

Respondent:

MS ALVES

File Number:

SYC 4395 of 2014

Judgment of:

Judge Scarlett

Hearing date:

4 November 2014

Date of Last Submission:

4 November 2014

Delivered at:

Sydney

Delivered on:

5 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Kennedy

Solicitors for the Applicant:

The Norton Law Group

Solicitor for the Respondent:

Ms Relator

Solicitors for the Respondent:

Walker Kissane and Plummer

ORDERS

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.
The child X is to live with the Mother.
The Mother is restrained by injunction from relocating the residence of the child X from a radius of 30 kilometres from (omitted) Primary School.
The child X is to spend time with the Father as follows:
(a)Each alternate weekend during the school term commencing on 7 November 2014 from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;
(b)On the weekend that includes Father’s Day from 4:30pm on the Friday until the commencement of school on the following Monday;
(c)For half of each school holiday period by agreement or failing agreement for the second half commencing at 9:00am on the middle Saturday of the school holiday period;
(d)For a period of two (2) hours on the child’s birthday;
(e)From 10:00 am on Boxing Day 26 December 2014 until 6:00 pm on 27 December 2014; and
(f)From immediately after school until 7:00 pm on the father’s birthday.
Notwithstanding the provisions of Order (4)(a) above the child will not spend time with the father on the weekend that includes Mother’s Day in each year.
Each party is restrained from discussing the proceedings with the child or allowing any other person to do so in the presence or hearing of the child.
The parties are to attend upon a Family Consultant at a time and on a date nominated by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.
The Application is listed for Final Hearing at 10:00am on 22 April 2015 to continue until 23 April 2015.
The Applicant is to pay 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.

Continue reading Bourke and Alves

Details

AGLC: Bourke and Alves [2014] FCCA 2680
Case: [2014] FCCA 2680
Decision Date: 5 November 2014

CaseChat Overview and Summary

In *Bourke and Alves*, heard by Judge Scarlett, the dispute concerned parenting arrangements for the child X. The orders indicate that the Applicant Father and Respondent Mother sought to establish orders regarding the child's residence, time spent with each parent, and other related matters.

The court was required to determine the most appropriate parenting orders for the child X, considering the principles of equal shared parental responsibility and the child's best interests. Key issues included the child's primary residence, the extent of time the child would spend with each parent, and whether to impose an injunction restricting the mother from relocating the child's residence. The court also addressed the need for a Family Report and set a date for a final hearing.

The court ordered equal shared parental responsibility for the child X, with the child to live with the Mother. An injunction was granted restraining the Mother from relocating the child's residence beyond a 30-kilometre radius of a specified primary school. Specific arrangements were detailed for the child's time with the Father, including alternate weekends, half of school holidays, and specific days such as the child's birthday and Boxing Day, with an exception for the weekend of Mother's Day. The parties were also restrained from discussing the proceedings with the child and ordered to attend a Family Consultant for a Family Report. The matter was listed for a final hearing, with strict timelines set for the filing of affidavits and the setting-down fee.

Orders

Orders of the court

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.

The child X is to live with the Mother.

The Mother is restrained by injunction from relocating the residence of the child X from a radius of 30 kilometres from (omitted) Primary School.

The child X is to spend time with the Father as follows:

(a) Each alternate weekend during the school term commencing on 7 November 2014 from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;

(b) On the weekend that includes Father’s Day from 4:30pm on the Friday until the commencement of school on the following Monday;

(c) For half of each school holiday period by agreement or failing agreement for the second half commencing at 9:00am on the middle Saturday of the school holiday period;

(d) For a period of two (2) hours on the child’s birthday;

(e) From 10:00 am on Boxing Day 26 December 2014 until 6:00 pm on 27 December 2014; and

(f) From immediately after school until 7:00 pm on the father’s birthday.

Notwithstanding the provisions of Order (4)(a) above the child will not spend time with the father on the weekend that includes Mother’s Day in each year.

Each party is restrained from discussing the proceedings with the child or allowing any other person to do so in the presence or hearing of the child.

The parties are to attend upon a Family Consultant at a time and on a date nominated by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.

The Application is listed for Final Hearing at 10:00am on 22 April 2015 to continue until 23 April 2015.

The Applicant is to pay the setting-down fee or obtain a reduction of that fee by 2 April 2015

10.

The parties are to file and serve all affidavits upon which they seek to rely no later than 2 April 2015 and no affidavits will be accepted for filing after that date without leave of the Court.

11.

The parties are to advise the Court no later than 13 March 2015 whether the Family Consultant who prepared the Family Report will be required for cross-examination.

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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