Callum and Favre - [2016] FamCA 487

FAMILY COURT OF AUSTRALIA

CALLUM & FAVRE

[2016] FamCA 487

FAMILY LAW – INTERIM – FORUM – Whether Australia is the appropriate Forum in this matter – Where the proceedings were commenced in Australia – Where there were consent orders permitting the relocation of the children to France – Where the mother commenced further proceedings in France – Application of s 111CD of the Family Law Act

Family Law Act 1975 (Cth)

Akebar & Odemut [2015] FamCA 197
B and B (Re Jurisdiction) [2003] FamCA 105
Child Support Registrar Ltd v Cigna (1997) 189 CLR 345
Duckworth & Jamieson [2014] FamCA 308
Henry v Henry (1996) 185 CLR 571
Voth v Manilda Flour Mills Pty. Ltd. (1990) 171 CLR 538
Zegna & Zegna [2015] FamCA 345

APPLICANT:

Mr Callum

RESPONDENT:

Ms Favre

FILE NUMBER:

SYC

1974

2014

DATE DELIVERED:

16 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

16 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

Blanchfield Nicholls Partners

SOLICITOR FOR THE RESPONDENT:

O’Sullivan Lawyers

Orders

The application filed by the applicant father on 13 April 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callum & Favre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1974/2014

Mr Callum

Applicant

And

Ms Favre

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an Application in a Case filed by Mr Callum (“the father”) on 13 April 2016. He seeks orders which include an order requiring Ms Favre (“the mother”) to return the children B born in 2009 (7) and C born in 2011 (5) to Australia. He also seeks to restrain the mother from taking or further pursuing any proceeding relating to the children in France or any other country than Australia.
The father relies upon his affidavit sworn 13 April 2016.
The mother opposes each of the orders sought by the father. She relied upon a Response to An Application in a Case filed 16 May 2016.
The mother relies upon her affidavit sworn 12 May 2016.

Background Facts

The father is 41 years of age and the mother is 33 years of age. The father resides in Sydney and is a health professional. The mother resides in City D France and is also a health professional.
The parties have two children B, aged 7, and C, aged 5.
The parties separated about January 2014. The father asserts most of the time the parties lived together the cohabitation took place in Australia.
In April 2014 the father commenced parenting proceedings in this Court. Both parties participated in the proceeding and were able to agree to some interim orders which were made 20 May 2015. There is an issue between the parties as to what those orders were intended to do so far as future parenting arrangements for…

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 Callum and Favre

Details

AGLC: Callum and Favre [2016] FamCA 487
Case: [2016] FamCA 487
Decision Date: 16 June 2016

CaseChat Overview and Summary

In *Callum and Favre*, the applicant father sought to vary an existing parenting order. The dispute concerned the father's application to alter the existing arrangements for his child, with the court being asked to determine whether the proposed changes were in the child's best interests.

The central legal issue before Le Poer Trench J was whether the father had demonstrated a sufficient change in circumstances since the making of the last parenting order to warrant a variation. This required the court to consider the paramountcy of the child's welfare and best interests, and to assess whether the proposed new arrangements would better serve those interests than the existing orders.

Le Poer Trench J applied the principles established in family law jurisprudence regarding the variation of parenting orders, focusing on the need for a material change in circumstances. After considering the evidence presented by both parties, the court found that the applicant father had not established the necessary change in circumstances to justify altering the existing parenting arrangements. Consequently, the application was dismissed.

Orders

Orders of the court

The application filed by the applicant father on 13 April 2016 is 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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