DELMAR & TAMBLYN - [2021] FCCA 769

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELMAR & TAMBLYN

[2021] FCCA 769

Catchwords:
FAMILY LAW – Parenting proceedings – proceedings transferred to the Family Court of Australia – Order made.

Legislation:

Family Law Act 1975 (Cth), s.68B

Federal Circuit Court of Australia Act 1999 (Cth), s.39(4)

Federal Circuit Court Rules 2001, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant:

MR DELMAR

Respondent:

MS TAMBLYN

File Number:

PAC 5001 of 2020

Judgment of:

Judge Newbrun

Hearing date:

12 April 2021

Date of Last Submission:

12 April 2021

Delivered at:

Parramatta

Delivered on:

12 April 2021

REPRESENTATION

Solicitors for the Applicant:

Mr Lloyd, Wm Lloyd & Associates

Solicitors for the Respondent:	Ms Hayward, Stacks Champion
Solicitors for the Independent Children's Lawyer:	Mr Harb, Harb Lawyers

ORDERS

At the request of the ICL and the Mother and Father’s legal representatives, these proceedings are transferred to the Parramatta Registry of the Family Court of Australia.
The proceedings are listed for First Return in the Family Court of Australia at Parramatta on 13 May 2021 at 10:15 am.

NOTATION:

A.The Court will shortly provide its Reasons in relation to the above transfer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5001 of 2020

MR DELMAR

Applicant

And

MS TAMBLYN

Respondent

REASONS FOR JUDGMENT

The within Reasons for Judgment relate to this Court’s Order of 12 April 2021 that these parenting proceedings be transferred to the Family Court of Australia. Both parties and the Independent Children’s Lawyer (“ICL”) sought the transfer order.
The subject Children are aged 3 and 5 years. Presently the Children live with the Mother.
The Mother is aged 35 years. The Father is aged 43 years.
The parties’ relationship subsisted for about 12 years.
An ICL has been appointed to represent the Children.
There are presently outstanding appellate criminal law proceedings relating to the Father and due to be heard in the Local Court in May 2021. The appeal by the Father relates to a conviction for breach of an ADVO.
There is a final ADVO protecting the Children and the Mother from the Father in force until 2022.
There is an ADVO in place for the protection of the Maternal Grandfather against the Father.
An allegation has been made by the Mother against the Father that he abducted the Children on about 10 March 2021.
The Father seeks final parenting orders that the Children live with him and spend time with the Mother. The Mother seeks final parenting orders that the Children spend no time with the Father.
This family has been the subject of reporting to and investigation by the police and child welfare authorities.

Issues in dispute

The issues in the parenting dispute include the following:
i)The nature and extent of the Mother’s alleged adverse mental health, and its effect upon her parenting capacity. The Father alleges that the Mother…

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 DELMAR & TAMBLYN

Details

AGLC: DELMAR & TAMBLYN [2021] FCCA 769
Case: [2021] FCCA 769
Decision Date: 12 April 2021

CaseChat Overview and Summary

The parties involved were the Independent Children's Lawyer (ICL), the Mother, and the Father. The dispute concerned proceedings that were ultimately transferred to the Parramatta Registry of the Family Court of Australia. The decision was made by Judge Newbrun.

The primary legal issue before the court was whether to grant the request to transfer the proceedings to a different registry. This decision would impact the location and administration of the ongoing legal matter concerning the parties and their children.

Judge Newbrun ordered the transfer of the proceedings to the Parramatta Registry of the Family Court of Australia at the request of the legal representatives for the ICL, the Mother, and the Father. The proceedings were subsequently listed for their First Return at the Parramatta Registry on 13 May 2021. The court indicated that detailed reasons for this transfer would be provided shortly.

Orders

Orders of the court

At the request of the ICL and the Mother and Father’s legal representatives, these proceedings are transferred to the Parramatta Registry of the Family Court of Australia.

The proceedings are listed for First Return in the Family Court of Australia at Parramatta on 13 May 2021 at 10:15 am.

NOTATION:

A. The Court will shortly provide its Reasons in relation to the above transfer.

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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