COOLEN & COOLEN - [2019] FCCA 175

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOLEN & COOLEN

[2019] FCCA 175

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking order that mother relocate child’s residence back to former living region – proposed order not made – best interests of child.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Banks & Banks [2015] FamCAFC 36
Leroy & Leroy [2018] FCCA 3211

Applicant:

MR COOLEN

Respondent:

MS COOLEN

File Number:

PAC 4209 of 2018

Judgment of:

Judge Newbrun

Hearing date:

26 November 2018

Date of Last Submission:

27 November 2018

Delivered at:

Parramatta

Delivered on:

1 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Kenny of Counsel

Solicitors for the Applicant:

Matthews Folbigg Pty Ltd

Counsel for the Respondent:

Mr Roberts of Counsel

Solicitors for the Respondent:

Boyce Family Law & Mediation

ORDERS PENDING FURTHER ORDER

The mother and the child [X] born …2018 be permitted to remain in Town A pending the final hearing.
That the child [X] born …2018 (“[X]”) live with the mother.
That [X] shall spend time with the father as agreed between the parties in writing, but failing agreement as follows:
(a)Each Saturday from 1:30 pm to 5:30 pm, commencing the Saturday following the date of these Orders; and
(b)Each Sunday from 8:30 am to 12:30 pm.
That for the purpose of facilitating the parties’ time with [X] under these Orders, changeover shall occur as agreed between the parties but failing agreement, the father shall collect the child from the mother’s residence at the commencement of the father’s time with the child and the father shall deliver the child to the mother’s residence at the conclusion of the father’s time with the child each alternate weekend and the mother shall deliver the child to the father’s residence at the commencement of the father’s time each other weekend.
That neither party shall denigrate the other party in the presence or hearing of [X] nor permit [X] to remain in the presence or hearing of any persons who engage in such conduct.
Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with [X]’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to [X]’s health to the extent permitted by law.
That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
That each party shall notify the other of any serious illness or injuries suffered by [X] while in that parent’s care as soon as reasonably practicable and shall provide reasonable particulars as to the name and contact details of [X]’s treating doctor and any hospital, medical facility…

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 COOLEN & COOLEN

Details

AGLC: COOLEN & COOLEN [2019] FCCA 175
Case: [2019] FCCA 175
Decision Date: 1 February 2019

CaseChat Overview and Summary

In *Coolen & Coolen*, the father sought interim orders for the mother to relocate the child's residence back to a former living region. The matter came before Newbrun J in the Family Court of Australia.

The central legal issue before the court was whether to make an interim order for the relocation of the child's residence, and if so, what orders were in the best interests of the child.

Newbrun J considered the paramountcy of the child's best interests in determining the application. The court's reasoning focused on the evidence presented regarding the child's current circumstances and the potential impact of any relocation on their well-being. The judge applied the principles of the *Family Law Act 1975* (Cth) concerning interim parenting orders, emphasising the need for stability and the avoidance of disruption to the child's life unless clearly justified by their best interests.

The application for the father's proposed interim relocation order was not made.

Orders