Ivey and Allport (No.2) - [2014] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

IVEY & ALLPORT (No.2)

[2014] FCCA 2241

Catchwords:
FAMILY LAW – Stay – application for stay pending determination of parenting appeal – whether the mother’s appeal would be rendered nugatory if a stay is not granted – whether the mother has an arguable case on appeal – consideration of limiting the frequency of changes in children’s living arrangements – best interests of the children – return of children to father to coincide with time the children would have been returned to his care during school holidays.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Ivey & Allport [2014] FCCA 1887
K and B [2006] FamCA 848; (2008) 37 Fam LR 1; (2006) FLC 93-288
Kelly & Kelly (1980) 6 Fam LR 741; (1981) FLC 91-007

Applicant:

MS IVEY

Respondent:

MR ALLPORT

File Number:

SYC 2129 of 2014

Judgment of:

Judge Scarlett

Hearing date:

17 September 2014

Date of Last Submission:

17 September 2014

Delivered at:

Sydney

Delivered on:

19 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

David H. Cohen & Co

Counsel for the Respondent:

Ms Oakley

Solicitors for the Respondent:

Cooper Grace Ward Lawyers

ORDERS

The Application in a Case filed on 3 September 2014 is dismissed.
The Applicant Mother is to return the children [X] and [Y] to the care of the Respondent Father by 5:00pm on Saturday 27 September 2014.
The Orders of 19 August 2014 are otherwise confirmed.

IT IS NOTED that publication of this judgment under the pseudonym Ivey & Allport (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2129 of 2014

MS IVEY

Applicant

And

MR ALLPORT

Respondent

REASONS FOR JUDGMENT

Application

This is an Application in a Case seeking a stay of a decision of this Court made on 19^th August 2014 ordering the Applicant Mother to return the parties’ two children to the care of their father, with whom they had been living, and transferring the proceedings to the Brisbane Registry of the Court. The Applicant has appealed against that decision and seeks a stay of the orders until the Appeal can be heard.
The Respondent Father opposes the Application for a stay.

The Decision and the Appeal

The decision that is the subject of the Applicant’s Appeal was made on 19^th August 2014, after an interim hearing conducted that day (Ivey & Allport[1]). The following Orders were made:
[1] [2014] FCCA 1887
1. The proceeding is transferred to the Brisbane Registry of the Court and is to be listed before Judge Jarrett on 9 October 2014 at 9:30 am.
2. An interpreter in the Arabic language is required for the assistance of the Respondent Father on the next occasion.
3. The interests of the children [X] born [in] 2005 and [Y] born [in] 2009 are to be independently represented by a lawyer…

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 Ivey and Allport (No.2)

Details

AGLC: Ivey and Allport (No.2) [2014] FCCA 2241
Case: [2014] FCCA 2241
Decision Date: 19 September 2014

CaseChat Overview and Summary

The proceeding concerned an application by the Applicant Mother regarding the care of two children, [X] and [Y], in a dispute with the Respondent Father. The matter came before Judge Scarlett in the Family Court of Australia.

The primary legal issue before the Court was whether to vary or set aside existing orders concerning the children's living arrangements, specifically an order made on 19 August 2014. The Applicant Mother sought to have these orders altered, while the Respondent Father sought their confirmation and the return of the children to his care.

Judge Scarlett's reasoning focused on the best interests of the children, a paramount consideration in family law matters. The Court considered the evidence presented and determined that the existing orders of 19 August 2014 were appropriate and served the children's welfare. Consequently, the Court found no grounds to set aside or vary those orders.

The Court ordered that the Applicant Mother's application be dismissed. Furthermore, the Court ordered the Applicant Mother to return the children, [X] and [Y], to the care of the Respondent Father by 5:00 pm on Saturday, 27 September 2014. The orders made on 19 August 2014 were otherwise confirmed.

Orders

Orders of the court

The Application in a Case filed on 3 September 2014 is dismissed.

The Applicant Mother is to return the children [X] and [Y] to the care of the Respondent Father by 5:00pm on Saturday 27 September 2014.

The Orders of 19 August 2014 are otherwise confirmed.

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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