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Ember & Assadi

Ember & Assadi

Case [2013] FamCAFC 107 19 July 2013

Jurisdiction

Reasonable Practicability

Relocation

Best Interests of the Child

Spousal Maintenance

Parental Responsibility

Family Law

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FAMILY COURT OF AUSTRALIA

EMBER & ASSADI

[2013] FamCAFC 107

FAMILY LAW – APPEAL – CHILDREN – where the mother had moved with the children to Victoria and the father remained living in New South Wales – where the Federal Magistrate made orders providing, inter alia, that the children live with the mother and spend substantial and significant time with the father, and that the mother ensure the children’s permanent residence was in New South Wales within 8 weeks from the date of order – where the mother argued on appeal, relying on s 65DAA of the Family Law Act 1975 (Cth), that the Federal Magistrate failed to properly consider the reasonable practicability of these orders – where the mother argued there was insufficient evidence to allow the Federal Magistrate to make findings as to where the children, and necessarily the mother, could live and what financial support would be available to ensure that could happen – where the Full Court found it was not reasonably practicable, on the evidence before the Federal Magistrate, to put in place the order for substantial and significant time that his Honour did, given what it would require – appeal allowed and matter remitted to the Federal Circuit Court for rehearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) FLC 93-459
Kuru v New South Wales (2008) 236 CLR 1
MRR v GR (2010) 240 CLR 461
Sampson & Hartnett(No. 10) (2007) FLC 93-350
U & U (2002) 211 CLR 238

APPELLANT:

Ms Ember

RESPONDENT:

Mr Assadi

FILE NUMBER:

MLC

6354

2011

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

19 July 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Strickland & Ainslie-Wallace JJ

HEARING DATE:

3 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2011

LOWER COURT MNC:

[2011] FMCAfam 1260

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Portelli

SOLICITOR FOR THE APPELLANT:

Gleeson & Co

COUNSEL FOR THE RESPONDENT:

Ms Masood

SOLICITOR FOR THE RESPONDENT:

Fiona R McGregor

Orders

The appeal be allowed.
Orders 2, 3 and 6 made by Federal Magistrate Connolly (as he then was) on

23 December 2011 be set aside.
The proceedings in relation to where the children X Assadi and Y Assadi should live with the mother and what time they should spend with the father be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Connolly.
Until further order by the Federal Circuit Court the father spend time with the said children in accordance with paragraphs 2 and 3 of the Orders made by Federal Magistrate Connolly (as he then was) on 15 March 2012.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it…

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 Ember & Assadi

Details

AGLC: Ember & Assadi [2013] FamCAFC 107
Case: [2013] FamCAFC 107
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, consisting of Finn, Strickland, and Ainslie-Wallace JJ, allowed an appeal by Ms Ember (the mother) against parenting orders made by the Federal Magistrate on 23 December 2011. The orders appealed against required the mother to move to New South Wales within eight weeks and to ensure the children's permanent residence was in Sydney or Newcastle. The orders also provided for the father to spend time with the children each alternate weekend from 5pm Friday to 5pm Sunday and, in the event the mother resided in Sydney, from 11am to 4pm on the Wednesday immediately following the alternate weekend time and from 11am Wednesday to 11am Thursday in the off week, as well as time during school holidays and on special days and telephone communication every second day. On appeal the mother sought orders that she be permitted to reside in Melbourne in Victoria, that the children spend time with the father four times per year for a period of one week, and that the children communicate with the father by telephone or Skype three times per week. The mother argued on appeal that the Federal Magistrate failed to properly consider the reasonable practicability of the orders made and that there was insufficient evidence to allow the Federal Magistrate to make findings as to where the children, and necessarily the mother, could live and what financial support would be available to ensure that could happen. The Full Court found it was not reasonably practicable, on the evidence before the Federal Magistrate, to put in place the order for substantial and significant time that his Honour did, given what it would require. The appeal was allowed and Orders 2, 3 and 6 made by the Federal Magistrate set aside. The proceedings were remitted to the Federal Circuit Court for rehearing. The father was to continue to spend time with the children in accordance with paragraphs 2 and 3 of the Orders made by the Federal Magistrate on 15 March 2012. There was no order as to costs. The Court granted to the parties costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders