Finn and Finn (No.2) - [2011] FMCAfam 1561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FINN & FINN (No.2)

[2011] FMCAfam 1561

FAMILY LAW – Parenting – interim hearing – whether child should be permitted to travel to (country omitted) with the mother for 3 weeks.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65X, 65Y, 65Z, 68B, 68L
Family Law Regulations 1984

Goode & Goode (2006) FLC 93-286
Finn & Finn [2011] FMCAfam 1135
Keubler and Kuebler (1978) FLC 90-434
Line & Line (1996) 21 Fam LR 259

Applicant:

MS FINN

Respondent:

MR FINN

File Number:

SYC 5733 of 2010

Judgment of:

Monahan FM

Hearing date:

17 October 2011

Date of Last Submission:

17 October 2011

Delivered at:

Sydney

Delivered on:

25 October 2011

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Drexler & Partners

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Belgrave Lawyers

Counsel for the Independent Children’s Lawyer:

Not applicable

Solicitors for the Independent Children’s Lawyer:

Peter Baker Solicitors

ORDERS

All extant applications be adjourned to this Court on 21 December 2011 at 11:30am for mention (“the mention hearing”).
The parties attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Sydney Registry on 22 November 2011 at 2:15pm AND the solicitors for each party send to the other and the Registrar at least seven (7) days before the Conciliation Conference copies of:
(a)a completed Conciliation Conference document;
(b)a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)if there is a significant discrepancy between the market appraisals obtained by the parties, a single expert valuation of all relevant property;
(d)the actual terms of orders required to give effect to their settlement proposal;
(e)if applicable, a copy of any apprehended violence order or restraining order that is currently in force; and
(f)a written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness
AND IN THE EVENT that the matter does not settle at the Conciliation Conference, further directions be given at the mention hearing and, in addition, where a party has not complied with subparagraphs (a) to (f) herein the Court may consider submissions with respect to costs.
The listing of this matter for mention on 16 November 2011 be vacated.
The Application in a case filed by the Respondent on 26 September 2011 be dismissed with no Order as to costs.
All existing Orders continue in full force and effect.

AND THE COURT NOTES THAT:

(A)The purpose of the mention hearing is to consider:
a.the results of the Conciliation Conference;
b.further directions, in the event that the parties remain in dispute;
c.the likely release date of the Family Report; and
d.whether two (2) days remains a viable estimate of the time required for the Final Hearing.

IT IS NOTED that publication…

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.

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Details

Case: [2011] FMCAfam 1561
Decision Date

CaseChat Overview and Summary

This decision arises from an Application in a Case filed on 28 September 2011 by MS FINN (“the mother”) against MR FINN (“the father”). The mother is seeking to have her child, X, travel with her to (country omitted) for three weeks, to visit her ill mother, the maternal grandmother. The father opposes the mother's request. The sole legal issue before the Court is whether the child should be permitted to travel to (country omitted) with the mother for three weeks.

The mother submitted that she did not represent a flight risk and that she could offer her interest in the parties’ matrimonial property as security. The father opposed the mother's request, arguing that it would threaten the bond now developing between the child and the father. The Independent Children's Lawyer did not support the mother's request. The Court considered the relevant statutory provisions and authorities, including the principle that the child’s best interests must be regarded as the paramount consideration.

The Court found that lifting the Airport Watch List order would not be in the best interest of the child, nor advance her welfare. The Court noted that there is no recent medical evidence to support the mother's claim that the maternal grandmother is ill, and that the mother had previously stayed in (country omitted) for seven months before the child's birth. The Court also considered the proximity of the final hearing and the effect that any separation may have upon the child if the mother were allowed to travel with her. The Court ultimately concluded that lifting the Airport Watch List order would not be in the child's best interests.

The Court dismissed the mother's Application in a Case with no order as to costs. The final orders include adjournments of extant applications, a Conciliation Conference, and a mention hearing to consider the results of the Conciliation Conference, further directions, and the likely release date of the Family Report. The listing of the matter for mention on 16 November 2011 was vacated, and the Application in a case filed by the Respondent on 26 September 2011 was dismissed with no order as to costs. All existing Orders continue in full force and effect.

Orders