COULSTON & WALTERS - [2015] FCCA 1751

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULSTON & WALTERS

[2015] FCCA 1751

Catchwords:
FAMILY LAW – Mother relocates children from New South Wales to Western Australia during the course of proceedings – whether it is in best interests of children to be returned to (omitted) pending final hearing.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZW

C and S [1998] FamCA 66
Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4

Applicant:

MS COULSTON

Respondent:

MR WALTERS

File Number:

SYC 7243 of 2010

Judgment of:

Judge Altobelli

Hearing date:

27 May 2015

Date of Last Submission:

27 May 2015

Delivered at:

Wollongong

Delivered on:

4 June 2015

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

RMB Family Law

Solicitors for the Respondent:

PJ Carey Solicitor

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

That the matter be adjourned to 25 August 2015 at 9.30am for Mention.
That the Parents are to forthwith do all acts and things necessary, and if possible assisted by the Independent Children’s Lawyer, to ascertain if the Children, X born (omitted) 2006 and Y born (omitted) 2008, can be re-enrolled in their previous school in the (omitted) area.
That in the event that the Children can be re-enrolled as per Order 2 above, the parents are to forthwith do all acts and things necessary to enrol the Children in the school in the (omitted) area.
That the Mother is to do all acts and things necessary to cause the Children to be returned to the (omitted) area after 3 July 2015 but before 13 July 2015.
That until the children return to the (omitted) area in accordance with these Orders, the Orders made by Judge Sexton on 23 March 2015 relating to the Father’s supervised time with the Children are to continue.
That upon the Children’s return to the (omitted) area, the Orders made 23 December 2014 relating to the Father’s supervised time with the Children are reinstated.

IT IS NOTED that publication of this judgment under the pseudonym Coulston & Walters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Wollongong

SYC 7243 of 2010

MS COULSTON

Applicant

And

MR WALTERS

Respondent

REASONS FOR JUDGMENT

Background

The matter relates to two children, X, born (omitted) 2006, 8 years old, and Y, born (omitted) 2008, 6 years old.
The Application came before me for interim hearing on 27 May last week. The matter initially came before the Court by way of the Father’s Contravention Application filed in October. The Mother filed an Application in a Case, in effect, in response to that on 24 October, seeking a number of orders, for example, to suspend the existing orders for the children to spend time with the Father, a transfer to this Court, supervised contact and so forth.
During the course of proceedings, it appears that the Mother relocated the children and herself…

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 COULSTON & WALTERS

Details

AGLC: COULSTON & WALTERS [2015] FCCA 1751
Case: [2015] FCCA 1751
Decision Date: 4 June 2015

CaseChat Overview and Summary

The matter before Altobelli J concerned competing applications between the parents regarding their two children, X and Y. The dispute centred on arrangements for the children, including their schooling and residence, with particular regard to the impact of the father's alleged drug use and violence.

The court was required to determine the best interests of the children, considering the objects of the *Family Law Act 1975* (Cth), particularly the need to protect children from harm. This involved assessing the father's parental capacity, his ongoing drug use, and the impact of past violence on the children. The court also had to consider the competing proposals of both parents, based on the available evidence, which was limited to untested allegations and objective material.

Altobelli J applied the principles outlined in section 60CC of the *Family Law Act 1975*, which mandates consideration of primary and additional factors when determining the best interests of a child. The court noted the importance of protecting children from harm, as set out in section 60B, and referenced the Full Court's decision in *Goode*, which required consideration of sections 60CC, 61D, and 65DAA in interim applications. The court acknowledged that a full investigation could only occur at a final hearing and that its current inquiry was necessarily shortened.

The court made several orders, including an adjournment for a mention hearing. It directed the parents to ascertain if the children could be re-enrolled in their previous school and, if so, to enrol them. The mother was ordered to return the children to a specific area between 3 and 13 July 2015. Until the children's return, existing orders for the father's supervised time were to continue, and upon their return, previous orders for supervised time were to be reinstated.

Orders

Orders of the court

That the matter be adjourned to 25 August 2015 at 9.30am for Mention.

That the Parents are to forthwith do all acts and things necessary, and if possible assisted by the Independent Children’s Lawyer, to ascertain if the Children, X born (omitted) 2006 and Y born (omitted) 2008, can be re-enrolled in their previous school in the (omitted) area.

That in the event that the Children can be re-enrolled as per Order 2 above, the parents are to forthwith do all acts and things necessary to enrol the Children in the school in the (omitted) area.

That the Mother is to do all acts and things necessary to cause the Children to be returned to the (omitted) area after 3 July 2015 but before 13 July 2015.

That until the children return to the (omitted) area in accordance with these Orders, the Orders made by Judge Sexton on 23 March 2015 relating to the Father’s supervised time with the Children are to continue.

That upon the Children’s return to the (omitted) area, the Orders made 23 December 2014 relating to the Father’s supervised time with the Children are reinstated.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

THE RESPONDENT FATHER’S EVIDENCE The Court must consider the matters set out in Section 60CC being the primary considerations and the additional considerations referred to in Section 60CC(3) to determine what is in the children’s best interest. The Objects of the Act are set out in Section 60B and are extremely important in this matter in particular in attempting to protect the children from harm. Investigations need to be carried out about the impact on the children of the violence of the father and the inability particularly of the father, to demonstrate appropriate parental capacity as a result of continuing drug use, specifically marijuana. The Court is required to give a full investigation of the competing Applications before the Court but that can only occur at a Final Hearing. The Court necessarily can only make a shortened enquiry based on competing and untested allegations and what objective evidence might be available. The parties have not provided any supporting Affidavits by other deponents. In the case of Goode the Full Court required consideration of sections 60CC, 61D and 65DAA in dealing with an Interim Application. The Court is required to consider the competing proposals of both of the parties and make what findings of fact it can, based on the evidence supporting such proposals. SUBMISSION ORDERS SOUGHT

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.