Ember & Assadi

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).