FEDERAL CIRCUIT COURT OF AUSTRALIA
INSLEY & INSLEY [2018] FCCA 438
Catchwords:
FAMILY LAW – Interim parenting – mother and child in Victoria, father in Wollongong – allegations of family violence – how credit issues and fact-finding is managed in interim hearings – orders in best interests of child.
Legislation:
Crimes Act 1900 (NSW), s.59
Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 67N, 67ZBB
Cases cited:
Deiter & Deiter [2011] FamCAFC 82
Drew & Jensen [2017] FCCA 656
Eaby & Speelman [2015] FamCAFC 104
Enmore & Smoothe [2014] FamCAFC 131
Goode & Goode [2006] FamCA 1346
Marvel& Marvel (No.2) [2010] FamCAFC 101
MRR v GR [2010] HCA 4
Reece & Reece [2011] FamCAFC 24
Salah & Salah [2016] FamCAFC 100
Applicant: MR INSLEY
Respondent: MS INSLEY
File Number: WOC 1079 of 2017
Judgment of: Judge Altobelli
Hearing date: 15 February 2018
Date of Last Submission: 15 February 2018
Delivered at: Wollongong
Delivered on: 13 March 2018 REPRESENTATION
Counsel for the Applicant: Mr Knox
Solicitors for the Applicant: Rita Thakur & Associates
Solicitors for the Respondent: Rebecca Bailey & Associates Solicitors for the Independent Children's Lawyer:
Robertson Solicitors
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
(1)The child X, born (omitted) 2018 (‘the child’) live with the Mother in Melbourne.
(2)The child spend time with the Father as follows:
(a)On each alternate weekend from 10am until 4pm on Saturday and from 10am until 4pm the following Sunday; and
(b)At other times as agreed between the parties in writing.
(3)For the purposes of changeover the Father shall collect the child from and return the child to the Mother's residence with the Maternal Uncle or Aunt to attend as the Mother's agent.
(4)The Father be restrained from removing the child from the State of Victoria without the Mother's express, written consent.
(5)Each party be restrained from denigrating the other party or members of the other party's family in the child's presence.
IT IS NOTED that publication of this judgment under the pseudonym Insley & Insley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 1079 of 2017
MR INSLEY Applicant
And
MS INSLEY Respondent
REASONS FOR JUDGMENT
Introduction
1.These Reasons for Judgment explain the orders that the Court has made on an interim basis in relation to a child X born (omitted) 2015, now aged two years old. X currently lives with his Mother in Melbourne. His Father lives in the former matrimonial home in the (omitted) region of New South Wales.
Background
2.X is 26 years old, and his Mother also 26. They married in (omitted) 2014 and came to Australia in (omitted) that year. The relationship ended on 29 September 2017 when the Mother left the former matrimonial home without notice to the Father, taking X with her to Melbourne where her only family in Australia lives, i.e. her sister and brother-in-law.
Competing proposals
3.At the interim hearing held in Wollongong on 15 February…
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- Insley & Insley [2018] FCCA 438
- Case
- [2018] FCCA 438
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the child, the specific arrangements for the child to spend time with the father, including the method of changeover, and whether any geographical restrictions should be placed on the father's ability to remove the child from the state. Furthermore, the court considered the need for orders restraining the parties from making negative comments about each other or their respective families in the child's presence.
Judge Altobelli ordered that the child, X, would live with the Mother in Melbourne. The Father was granted time with the child on alternate weekends, from 10 am on Saturday until 4 pm on Sunday, with additional time to be agreed in writing. Changeovers were to occur at the Mother's residence, with the Maternal Uncle or Aunt attending as the Mother's agent. The Father was restrained from removing the child from Victoria without the Mother's written consent, and both parties were restrained from denigrating each other or their families in the child's presence.
Orders
Orders of the court
THE COURT ORDERS PENDING FURTHER ORDER THAT:
(1) The child X, born (omitted) 2018 (‘the child’) live with the Mother in Melbourne.
(2) The child spend time with the Father as follows:
(a) On each alternate weekend from 10am until 4pm on Saturday and from 10am until 4pm the following Sunday; and
(b) At other times as agreed between the parties in writing.
(3) For the purposes of changeover the Father shall collect the child from and return the child to the Mother's residence with the Maternal Uncle or Aunt to attend as the Mother's agent.
(4) The Father be restrained from removing the child from the State of Victoria without the Mother's express, written consent.
(5) Each party be restrained from denigrating the other party or members of the other party's family in the child's presence.
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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