Ferris and Midford - [2020] FamCA 471

FAMILY COURT OF AUSTRALIA

FERRIS & MIDFORD

[2020] FamCA 471

FAMILY LAW – CHILDREN – HAGUE CONVENTION – Interim – Where the child is retained by the mother in the United Kingdom – Where the father lives in Australia – Where Hague Convention proceedings were initiated in the United Kingdom and orders were made for the mother to return the child to Australia – Where the mother sought interim orders in the Family Court of Australia for the child to remain with her in the United Kingdom – Where it is uncontroversial that the child will benefit from a meaningful relationship with both parents – Where the mother is concerned that her mental health will deteriorate if she returns to Australia thereby placing the child at risk – Where evidence is controversial and untested – Where applicable factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where the parties shall have equal shared parental responsibility for the child – Where the child will live with the mother, subject to her forthwith establishing the child’s residence within Australia – Where the amount of time the child will spend with the father is dependent on the mother establishing residence with the child in Australia – Costs reserved for 28 days.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 69E
Hague Convention on the Civil Aspects of International Child Abduction 1980 Art 13(b)

Family Law Rules 2004 (Cth) rr 5.09, 15.51

AMS v AIF (1999) 199 CLR 160
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
DP v Commonwealth Central Authority (2001) 206 CLR 401
Franklyn and Franklyn [2019] FamCAFC 256
M v M (1988) 166 CLR 69
MW v Director-General, Department of Community Services (2008) 244 ALR 205
RCB v Forrest (2012) 247 CLR 304
Sampson and Hartnett (No. 10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda (2004) FLC 93-607

APPLICANT:

Ms Ferris

RESPONDENT:

Mr Midford

FILE NUMBER:

SYC

8729

2019

DATE DELIVERED:

10 June 2020

PLACE DELIVERED:

Newcastle (via telephone)

PLACE HEARD:

Newcastle (via telephone)

JUDGMENT OF:

Austin J

HEARING DATE:

1 & 10 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Doyle Wilson Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hogg

SOLICITOR FOR THE RESPONDENT:

Joplin Lawyers

Orders

The parties shall have equal shared parental responsibility for the child Z, born … 2018.
The child shall live with the mother, subject to her forthwith establishing the child’s residence:
(a)within 150 kilometres radius of the Post Office at B Town, New South Wales, Australia; or
(b)within 50 kilometres radius of the Post Office at Brisbane, Queensland, Australia.
The mother shall ensure the child communicates with the father by Skype (or other comparable electronic audio-visual means) each Monday, Wednesday and Sunday at:
(a)8.00 pm Australian Eastern Standard Time, while the child is in the United Kingdom; and
(b)6.00 pm Australian Eastern Standard Time, while the child is…

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 Ferris and Midford

Details

AGLC: Ferris and Midford [2020] FamCA 471
Case: [2020] FamCA 471
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the matter of Ferris and Midford, Austin J of the Family Court of Australia considered an application concerning the parental responsibility and residence of a child, Z, born in 2018. The dispute involved the mother and father regarding the arrangements for their child.

The court was required to determine the nature of parental responsibility to be shared between the parents, where the child would primarily reside, and the communication arrangements between the child and the non-resident parent. The court also had to consider the implications of contravening any orders made and the potential for future applications concerning the child's residence and time with the father.

Austin J ordered that the parties have equal shared parental responsibility for Z. The child was to live with the mother, provided she established residence within 150 kilometres of B Town, New South Wales, or within 50 kilometres of Brisbane, Queensland. The mother was also ordered to ensure the child communicated with the father via Skype or similar means on specific days and times, adjusted for the child's location in either Australia or the United Kingdom. The court noted that particulars of these obligations, consequences of contravention, and assistance were detailed in an attached Fact Sheet, forming part of the orders.

The court dismissed interim relief sought by both the mother and the father in their respective applications. Costs were reserved for 28 days. The court indicated it would consider further applications from the father regarding the child's residence if the mother failed to return the child to Australia as ordered, or concerning the child's time with him once the mother had established residence in Australia.

Orders

Orders of the court

The parties shall have equal shared parental responsibility for the child Z, born … 2018.

The child shall live with the mother, subject to her forthwith establishing the child’s residence:

(a) within 150 kilometres radius of the Post Office at B Town, New South Wales, Australia; or

(b) within 50 kilometres radius of the Post Office at Brisbane, Queensland, Australia.

The mother shall ensure the child communicates with the father by Skype (or other comparable electronic audio-visual means) each Monday, Wednesday and Sunday at:

(a) 8.00 pm Australian Eastern Standard Time, while the child is in the United Kingdom; and

(b) 6.00 pm Australian Eastern Standard Time, while the child is in Australia.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

Costs are reserved for 28 days.

Otherwise:

(a) the interim relief sought in the Initiating Application filed by the mother on 18 March 2020 is dismissed;

(b) the interim relief sought in the Response filed by the father on 16 April 2020 is dismissed; and

Notation

(A) The Court will entertain another application by the father concerning either the child’s residence (if the mother refuses to return the child to live in Australia as these orders provide) or the time the child must spend with him (once the mother establishes her residence with the child in Australia pursuant to these orders).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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