COONEY & MARTINEZ - [2016] FamCA 1021

FAMILY COURT OF AUSTRALIA

COONEY & MARTINEZ

[2016] FamCA 1021

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Overseas travel – Where the father seeks the discharge of an order made by consent allowing the mother to travel to South America with the children – Whether there has been a change in circumstances which increases the risk of non-return – Where the mother has resigned from her employment and moved out of her rental accommodation – Where the Court finds it appropriate for the security to be paid by the mother to be increased to $20 000 – Order varied.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Line & Line (1997) FLC 92-729
Sukova & Allen [2011] FamCA 340

APPLICANT:

Mr Cooney

RESPONDENT:

Ms Martinez

FILE NUMBER:

SYC

1906

2016

DATE DELIVERED:

28 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

16 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

McGirr Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

York Law Family Law Specialists

Orders pending further order

Order 4.4 of the Consent Orders made on 18 May 2016 is varied to increase the security to be paid by the mother from the sum of $10 000 to the sum of $20 000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1906 of 2016

Mr Cooney

Applicant

And

Ms Martinez

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application by the father to vary interim parenting orders made by consent on 18 May 2016 (“the Consent Orders”) in respect to the parties’ twins B and C, born in 2014, who are currently aged 2. Specifically, the father seeks an order discharging Order 4 of the Consent Orders which provides:
4. That the Father’s time be suspended in a period of 6 weeks over Christmas between December 2016/January 2017 to December 2018/January 2019 to enable the Mother to take the children to [South America] on a holiday and in relation to the same:
4.1 The Mother shall notify the Father 8 weeks prior to the impending departure of the dates that she and the children will leave Australia and return back to Australia by providing to the Father a travel itinerary setting out the above;
4.2 The Mother provide the Father with a telephone number where the children can be contacted during their…

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 COONEY & MARTINEZ

Details

AGLC: COONEY & MARTINEZ [2016] FamCA 1021
Case: [2016] FamCA 1021
Decision Date: 28 November 2016

CaseChat Overview and Summary

This matter concerned a dispute between Cooney and Martinez. The precise nature of the dispute is not detailed in the provided text, but it was heard and determined by McClelland J.

The central legal issue before the court was the interpretation and application of certain provisions within a deed. Specifically, the court was required to determine the legal effect of these provisions in the context of the agreement between the parties.

McClelland J's reasoning focused on the plain meaning of the words used in the deed and the intention of the parties as evidenced by the document itself. The court applied established principles of contractual interpretation, emphasizing that the language of the deed was paramount in resolving the dispute. The judge considered the context in which the provisions appeared and their relationship to other parts of the deed to ascertain the parties' mutual understanding.

Orders