HOWARD & HOWARD - [2017] FamCAFC 43

FAMILY COURT OF AUSTRALIA

HOWARD & HOWARD

[2017] FamCAFC 43

FAMILY LAW – APPEAL – CHILDREN – Relocation – Best interests – Equal time – Children’s cognitive development and the weight given to their views – No appealable error demonstrated – Appeal dismissed – Appellant mother ordered to pay the respondent father’s costs of the appeal.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Bennett and Bennett (1991) FLC 92-191
Lenova & Lenova (Costs) [2011] FamCAFC 141
Lane & Nichols (2016) FLC 93-750
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

APPELLANT:

Ms Howard

RESPONDENT:

Mr Howard

INDEPENDENT CHILDREN’S LAWYER:

Murray Lyons Solicitors

FILE NUMBER:

CSC

494

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

24 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

6 March 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 June 2016

LOWER COURT MNC:

[2016] FamCA 455

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Harding

SOLICITOR FOR THE APPELLANT:

Sandra Sinclair Lawyers

COUNSEL FOR THE RESPONDENT: Mr Betts

SOLICITOR FOR THE RESPONDENT:

Newman Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Murray Lyons Solicitors

Orders

On the application of the parties, the appeal against Order 14 made by Justice Tree on 8 June 2016 be allowed and the order set aside and in lieu thereof there be the following order:
14. If the mother intends travelling overseas with the children, she shall give the father written notice on or before 1 October each year, and the following arrangements shall apply:
a. In even numbered years:
i. the children will spend time with the father for the first weekend of the Christmas school holidays (from after school on the last day of school in Term 4 until 4.00 pm on the Sunday immediately following) and the last weekend of the Christmas school holidays (from 12 noon on the Friday until before school on the first day of school in Term 1); and
ii. the children will otherwise spend time with the mother for the balance of the school holiday period.
b. In odd numbered years, the children will spend time with the father from after school on the last day of term until 9.00 am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
The appeal otherwise be dismissed.
The appellant mother is to pay the costs of the appeal of the respondent father as agreed or, in default of agreement, as assessed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Howard & Howard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may…

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 HOWARD & HOWARD

Details

AGLC: HOWARD & HOWARD [2017] FamCAFC 43
Case: [2017] FamCAFC 43
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the Family Court of Australia, the case of Howard & Howard involved a dispute between a mother and a father regarding the travel arrangements for their children. The father sought to amend existing contact arrangements to address the mother's intention to travel overseas with the children. The mother opposed the application, and the matter was brought before Justice Tree. The mother sought leave to appeal the decision made by Justice Tree, which resulted in an order regarding the timing of the children's contact with each parent during school holiday periods when the mother intended to travel overseas. The legal issues before the court included whether the existing contact arrangements should be altered to accommodate the mother's travel plans and, if so, how those arrangements should be structured.

The court considered the best interests of the children as the paramount concern. It examined the existing contact arrangements and the mother's travel plans. The court found that the existing arrangements did not adequately accommodate the children's need for stability and contact with both parents during the holiday periods. The court accepted that the mother's travel plans were in the children's best interests but determined that the existing contact arrangements needed to be adjusted to ensure the children had sufficient time with both parents. The court set aside the original order and substituted it with a new order that specified the contact arrangements for even and odd-numbered years, ensuring the children spent time with both parents during the holiday periods.

The court allowed the appeal in part and set aside the original order, replacing it with the new arrangements outlined in the orders above. The court also dismissed the appeal in other respects and ordered the mother to pay the father's costs of the appeal. This decision balanced the children's need for contact with both parents with the mother's right to travel overseas.

Orders

Orders of the court

On the application of the parties, the appeal against Order 14 made by Justice Tree on 8 June 2016 be allowed and the order set aside and in lieu thereof there be the following order:

14. If the mother intends travelling overseas with the children, she shall give the father written notice on or before 1 October each year, and the following arrangements shall apply:

a. In even numbered years:

i. the children will spend time with the father for the first weekend of the Christmas school holidays (from after school on the last day of school in Term 4 until 4.00 pm on the Sunday immediately following) and the last weekend of the Christmas school holidays (from 12 noon on the Friday until before school on the first day of school in Term 1); and

ii. the children will otherwise spend time with the mother for the balance of the school holiday period.

b. In odd numbered years, the children will spend time with the father from after school on the last day of term until 9.00 am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.

The appeal otherwise be dismissed.

The appellant mother is to pay the costs of the appeal of the respondent father as agreed or, in default of agreement, as assessed.

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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