Dickson and Dickson - [2014] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

DICKSON & DICKSON

[2014] FCCA 2184

Catchwords:
FAMILY LAW – Wife filed an Application seeking financial and parenting orders – husband filed a Response seeking a permanent stay of the wife’s application on the basis Australia is clearly the inappropriate forum to determine the wife’s application – the parties and 3 children of the marriage are joint (country omitted) and United States of America citizens living in Australia since 2009 because of husband’s employment – the husband is returning to United States of America in October 2014 because of employment – the wife and children wish to remain in Australia to enable the parties’ 16 year old twins to complete their secondary education – the wife and children are currently on subclass 457 visas arising from the husband’s employment in Australia – because the husband is leaving Australia on 1 October 2014 the wife and children will need to apply for student visas to remain in Australia – there is no guarantee they will obtain visas – because of the urgency of the parenting matters, by agreement the matter proceeded on parenting matters and the stay application only – Held: – as the court only determining parenting the test for determining the forum is the best interests of children and on that basis Australia found to be the appropriate forum for parenting matters to be heard – best interests of children is they remain living in Australia with the wife to enable them to complete their secondary education.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

ZP v PS (1994) 181 CLR 639
AMS v AIF (1999) 199 CLR 160
U & U 211 CLR 238
EJK v TSL (2006) 35 FamLR
Pascarl & Oxley (Edited) (2013) FLC 93-536
Zanda & Zanda [2014] FamCAFC

Applicant:

MS DICKSON

Respondent:

MR DICKSON

File Number:

MLC 3066 of 2014

Judgment of:

Judge Bender

Hearing date:

3 September 2014

Date of Last Submission:

4 September 2014

Delivered at:

Melbourne

Delivered on:

22 September 2014

REPRESENTATION

Senior Counsel for the Applicant:

Mr Dixon

Junior Counsel for the Applicant:

Mr Combes

Solicitors for the Applicant:

Alpass & Associates

Senior Counsel for the Respondent:

Ms Kirton

Junior Counsel for the Respondent:

Ms Stoikovska

Solicitors for the Respondent:

Jo-Anna F S Moy Solicitor

ORDERS

The parties have equal shared parental responsibility for X, born (omitted) 1998 (“X”) and Y, born (omitted) 1998 (“Y”).
X and Y live with the wife.
X and Y spend time and communicate with the husband as agreed between the parties and if possible for no less than half of the Australian school holidays.
The parties sign all documents and do all things as soon as practicable from when they are requested to do so by the other party to facilitate the wife, X and Y’s continuing residence in Australia.
The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 1998 (“X”) and Y, female, born (omitted) 1998 (“Y”),…

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 Dickson and Dickson

Details

AGLC: Dickson and Dickson [2014] FCCA 2184
Case: [2014] FCCA 2184
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the matter of *Dickson and Dickson*, heard by Judge Bender, the dispute concerned parenting arrangements for two children, X and Y, born in 1998. The court was required to determine the nature of parental responsibility, the children's living arrangements, the extent of time and communication the children would spend with the husband, and the facilitation of the wife, X, and Y's continued residence in Australia.

The court also had to consider the discharge of an existing order restraining the removal of X and Y from the Commonwealth of Australia and the removal of their names from the Airport Watch List. Furthermore, the court was asked to determine the appropriate forum for the remaining proceedings.

Judge Bender ordered that the parties have equal shared parental responsibility for X and Y, with the children to live with the wife. The children are to spend time and communicate with the husband as agreed, and if possible, for no less than half of the Australian school holidays. The parties were directed to sign all necessary documents and take all required actions promptly to facilitate the wife, X, and Y's continued residence in Australia. The restraining order preventing the removal of X and Y from Australia was discharged, and their names were to be removed from the Airport Watch List. Finally, the proceedings were transferred to the Family Court of Australia.

Orders

Orders of the court

The parties have equal shared parental responsibility for X, born (omitted) 1998 (“X”) and Y, born (omitted) 1998 (“Y”).

X and Y live with the wife.

X and Y spend time and communicate with the husband as agreed between the parties and if possible for no less than half of the Australian school holidays.

The parties sign all documents and do all things as soon as practicable from when they are requested to do so by the other party to facilitate the wife, X and Y’s continuing residence in Australia.

The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 1998 (“X”) and Y, female, born (omitted) 1998 (“Y”), from the Commonwealth of Australia dated 2 June 2014 be discharged.

The Australian Federal Police remove the names of X and Y from the Airport Watch List at all points of international arrivals and departures in Australia.

Pursuant to Rule 8.02(1) of the Federal Circuit Court Rules 2001, the balance of these proceedings to be transferred to the Family Court of Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.