DAWKINS & SHORE - [2017] FCCA 1363

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWKINS & SHORE

[2017] FCCA 1363

Catchwords:
FAMILY LAW – International Travel – whether in children’s best interest.

FAMILY LAW – Practice and Procedure – transfer to Sydney Registry.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 65Y

Federal Circuit Court Rules 2001, r.8.01
Convention on the Civil Aspects of International Child Abduction 1980

Cases cited:

Rice & Asplund (1979) FLC 90 – 725

Kuebler & Kuebler (1978) FLC 90-434
Thomason & Malhotra [2010] FamCAFC 85
Line & Line (1997) FLC 92 - 729

Applicant:

MR DAWKINS

Respondent:

MS SHORE

File Number:

SYC 7399 of 2014

Judgment of:

Judge Obradovic

Hearing date:

15 June 2017

Date of Last Submission:

15 June 2017

Delivered at:

Parramatta

Delivered on:

23 June 2017

REPRESENTATION

Appearing for the Applicant:

Mr Haridimos

Solicitors for the Applicant:

Alan Rigas Solicitors

Appearing for the Respondent:

Ms Yap

Solicitors for the Respondent:

Kyle Family Lawyers

ORDERS

That the children X born on (omitted) 2008 and Y born on (omitted) 2010 are permitted to travel internationally in the period from (omitted) 2017 to (omitted) 2017, inclusive.
That the parties forthwith do all acts and things necessary to apply for and be issued with an Australian passport for each of X born on (omitted) 2008 and Y born on (omitted) 2010.
That the cost of the children’s passports pursuant to order (2) above shall be borne by the father.
That the proceedings are transferred to the Sydney Registry of the Federal Circuit Court of Australia to be listed on a date to be advised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 7399 of 2014

MR DAWKINS

Applicant

And

MS SHORE

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 September 2015, Judge Scarlett made final parenting orders regarding the children the subject of these proceedings, X born (omitted) 2008 and Y born (omitted) 2010, with the consent of the parties and at their invitation. Those orders are silent on the issue of international travel.
On 5 May 2017 the Applicant father, Mr Dawkins, commenced these proceedings by way of Initiating Application filed 5 May 2017 seeking, inter alia, an order permitting him to travel to (country omitted) with the children from (omitted) 2017 to (omitted) 2017. The Initiating Application also seeks a number of parenting orders on a final basis.
The Respondent mother filed a Response, on 14 June 2017, objecting to that travel and seeking a number of other orders[1], both on an interim and on a final basis.
[1] Parenting and procedural
The Initiating Application was first returnable before the Court on 15 June 2017. On that day the Court heard the father’s application for travel to (country omitted) with the children and the mother’s application for the proceedings to be transferred to the Sydney Registry of the Federal Circuit Court. For reasons which are…

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 DAWKINS & SHORE

Details

AGLC: DAWKINS & SHORE [2017] FCCA 1363
Case: [2017] FCCA 1363
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the matter of *DAWKINS & SHORE*, heard before Judge Obradovic, the dispute concerned an application by the father for permission for the parties' two children, X and Y, to travel internationally. The proceedings also involved a related application for the transfer of the case to the Sydney Registry of the Federal Circuit Court of Australia.

The court was required to determine whether international travel for the children was in their best interests, and consequently, whether to grant permission for such travel. Additionally, the court had to consider the procedural matter of transferring the proceedings to a different registry.

In reaching its decision, the court applied principles of family law concerning the best interests of children in the context of international travel. The court found that the proposed international travel was in the children's best interests and made orders accordingly. The court also ordered that the children be issued with Australian passports, with the cost to be borne by the father. Furthermore, the court ordered the transfer of the proceedings to the Sydney Registry for further listing.

Orders

Orders of the court

That the children X born on (omitted) 2008 and Y born on (omitted) 2010 are permitted to travel internationally in the period from (omitted) 2017 to (omitted) 2017, inclusive.

That the parties forthwith do all acts and things necessary to apply for and be issued with an Australian passport for each of X born on (omitted) 2008 and Y born on (omitted) 2010.

That the cost of the children’s passports pursuant to order (2) above shall be borne by the father.

That the proceedings are transferred to the Sydney Registry of the Federal Circuit Court of Australia to be listed on a date to be advised.

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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