Hornwood and Tyrell - [2017] FCCA 1685

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORNWOOD & TYRELL

[2017] FCCA 1685

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged eight & six – unilateral relocation – nature of interim hearing – allegations of family violence and drug abuse – assessment of risk – assessment of level of emergency facing mother prior to unilateral relocation – best interest.

Legislation:

Family Law Act 1975, ss.4AB(2)(f); 60CA; 60B(1)(a); 60B(2)(d); 60B(4); 60CC(2); 60CC(2A); 60CC(3)(c); 60CC(3)(d)

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Applicant:

MR HORNWOOD

Respondent:

MS TYRELL

File Number:

ADC 1937 of 2017

Judgment of:

Judge Brown

Hearing date:

18 July 2017

Date of Last Submission:

18 July 2017

Delivered at:

Adelaide

Delivered on:

21 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Clarke

Solicitors for the Applicant:

Clarke Hemmerling Lawyers

Counsel for the Respondent:

In person

Solicitors for the Respondent:

Not applicable

ORDERS

The mother return the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 so that they live with her in a residence within 45km of the [Town C] Town Hall in the State of South Australia no later than 4:00pm on 1 September 2017.
Until further or other order the aforesaid children live with the mother and they spend time and communicate with the father at such times and on such conditions as agreed between the parties from time to time.
No later than 8 September 2017 the father provide to the mother the sum of $500.00, which she is to utilise in order to obtain suitable rental accommodation for her and the children in order to give effect to order (1) hereof.
The father is directed to pay to the mother the sum of $150.00 per week, for a period of six (6) months commencing on 8 September 2017 with the sum in question to be paid into a bank account to be nominated to the father by the mother, with the sum to be allocated to the payment of the mother’s rent in respect of her and the children’s rental accommodation.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 25 September 2017 at 9:30am, to discuss the care, welfare and development of the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
In the event that the mother fails to comply with order (1) hereof, the father’s application be listed for urgent hearing in respect of any application, which he may wish to pursue, for a recovery order in respect of the aforesaid children.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The matter is fixed 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 Hornwood and Tyrell

Details

AGLC: Hornwood and Tyrell [2017] FCCA 1685
Case: [2017] FCCA 1685
Decision Date: 21 July 2017

CaseChat Overview and Summary

In the matter of *Hornwood and Tyrell*, Judge Brown considered an application concerning the welfare and living arrangements of two children, [X] and [Y]. The dispute involved the mother and father of the children, with the court ultimately making orders regarding their residence and contact.

The court was required to determine the primary residence of the children and the terms of their living arrangements, including the location of the mother's residence and the father's financial obligations. Additionally, the court needed to address the parties' communication and interaction with the children, and the need for dispute resolution. The court also considered the potential for recovery orders if certain conditions were not met and the need to prevent disparaging remarks about a parent in the children's presence.

Judge Brown ordered that the children reside with the mother within 45km of the [Town C] Town Hall in South Australia by a specified date. The father was directed to provide financial assistance to the mother for rental accommodation and ongoing weekly payments for a period of six months to facilitate this arrangement. The parties were also ordered to attend a family dispute resolution conference to discuss the children's care and development, and an injunction was granted restraining them from speaking negatively about each other in the children's presence. The matter was adjourned for further consideration and fixed for a final hearing.

Orders

Orders of the court

The mother return the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 so that they live with her in a residence within 45km of the [Town C] Town Hall in the State of South Australia no later than 4:00pm on 1 September 2017.

Until further or other order the aforesaid children live with the mother and they spend time and communicate with the father at such times and on such conditions as agreed between the parties from time to time.

No later than 8 September 2017 the father provide to the mother the sum of $500.00, which she is to utilise in order to obtain suitable rental accommodation for her and the children in order to give effect to order (1) hereof.

The father is directed to pay to the mother the sum of $150.00 per week, for a period of six (6) months commencing on 8 September 2017 with the sum in question to be paid into a bank account to be nominated to the father by the mother, with the sum to be allocated to the payment of the mother’s rent in respect of her and the children’s rental accommodation.

Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 25 September 2017 at 9:30am, to discuss the care, welfare and development of the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

In the event that the mother fails to comply with order (1) hereof, the father’s application be listed for urgent hearing in respect of any application, which he may wish to pursue, for a recovery order in respect of the aforesaid children.

The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.

The matter is fixed for final hearing before Judge Brown on 10 & 11 September 2018 at 10:00am NOTING 2 days allowed.

Further consideration of the matter is adjourned to 29 September 2017 at 9:30am.

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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