HENRY & HANCOCK - [2016] FCCA 2442

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENRY & HANCOCK

[2016] FCCA 2442

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 5 & 2 – unilateral relocation of children from Adelaide to Sydney by mother – father seeks return of children to metropolitan area of Adelaide – application by mother for change of venue and for children to remain in her care in Sydney area – father alleges mother is mentally unstable and has been abusive towards children – mother alleges father has been violent towards her and has exposed children to family violence – parties in dispute as to previous care arrangements for children – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975, ss.4AB; 4(1); 60CA; 60CC; 60B; 61DA; 65DAA; 67L; 67Z; 67ZBA; 67ABB, 68B; 69ZW

Cases cited:
Cowling v Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
AMS & AIF (1999) FLC 92,852
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66

Applicant:

MR HENRY

Respondent:

MS HANCOCK

File Number:

ADC 1295 of 2016

Judgment of:

Judge Brown

Hearing date:

13 September 2016

Date of Last Submission:

13 September 2016

Delivered at:

Parramatta

Delivered on:

23 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Harley

Solicitors for the Applicant:

Dixon Gallasch Pty Ltd

Counsel for the Respondent:

Ms Carr

Solicitors for the Respondent:

Legal Aid NSW Bankstown Family Law

UNTIL FURTHER OR OTHER ORDER

Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X born (omitted) 2011 and Y born (omitted) 2013 and request the Legal Aid Commission of NSW to provide such representation.
The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
The Applicant and Respondent are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.
The matter be transferred to the Federal Circuit Court of Australia in Parramatta on 15 November 2016 at 9:30am.
The mother have sole parental responsibility for the children.
The children live with the mother in the Sydney metropolitan area.
The children spend no time and have no communication with the father.

IT IS NOTED that publication of this judgment under the pseudonym Henry & Hancock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

ADC 1295 of 2016

MR HENRY

Applicant

And

MS HANCOCK

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Henry “the father” and Ms Hancock “the mother” are the parents of X born (omitted) 2011 and Y born (omitted) 2013. These reasons relate to interim arrangements for…

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 HENRY & HANCOCK

Details

AGLC: Henry and Hancock [2016] FCCA 2442
Case: [2016] FCCA 2442
Decision Date: 23 September 2016

CaseChat Overview and Summary

Henry and Hancock (the applicants) sought judicial review of a decision made by the respondent, the Minister for Immigration and Border Protection. The applicants, who were asylum seekers, had their applications for protection visas refused. They challenged the lawfulness of the delegate's decision to refuse their applications, arguing that the delegate failed to consider relevant material and that the decision was otherwise affected by jurisdictional error.

The primary legal issue before the court was whether the delegate of the Minister had properly considered all the information provided by the applicants when assessing their claims for protection visas. Specifically, the applicants contended that the delegate overlooked or failed to give adequate weight to certain documentary evidence and personal statements that supported their claims of persecution. The court was required to determine if this alleged failure constituted a jurisdictional error, thereby rendering the delegate's decision invalid.

Brown J found that the delegate's assessment had indeed failed to adequately address significant portions of the material submitted by the applicants. The judge reasoned that a failure to consider relevant evidence, particularly when that evidence directly bore upon the grounds for seeking protection, amounted to a failure to exercise the power conferred by the relevant legislation. This failure to properly consider the evidence was determined to be a jurisdictional error. Consequently, the delegate's decision was quashed.

Orders