Kidd and Young - [2016] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIDD & YOUNG

[2016] FCCA 1935

Catchwords:
FAMILY LAW – Parenting – Relocation of a child – Mother moved to Perth where her family live with two-year-old in absence of the consent of the Father – Father sought child be returned to Sydney with the Mother – Mother permitted to stay in Perth with the child pending further order of the court as an order in the child’s best interests – proceedings transferred to Western Australia Family Court.

Legislation:

Family Law Act1975 (Cth)

Morgan & Miles [2007] FamCA 1230 (17 October 2007)
Browne & Keith [2015] FamCAFC 143
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346

Applicant:

MR KIDD

Respondent:

MS YOUNG

File Number:

SYC 2706 of 2016

Judgment of:

Judge Henderson

Hearing date:

20 July 2016

Date of Last Submission:

20 July 2016

Delivered at:

Sydney

Delivered on:

20 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Othen of Counsel

Solicitors for the Applicant:

Mason Foxx Lawyers

Counsel for the Respondent:

Ms Messner of Counsel

Solicitors for the Respondent:

Domestic Violence Legal Clinic

ORDERS

That the child is X born (omitted) 2014 to live with her mother MS YOUNG.
That the parents, MS YOUNG and MR KIDD have equal shared parental responsibility for the child X.
Until further order MR KIDD and his servants and agents are restrained from taking or sending or attempting to take or send the child X, female, born (omitted) 2014 from the Commonwealth of Australia.
The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
The proceedings be transferred to the Family Court of Western Australia.
The child X born (omitted) 2014 is to spend time with her father MR KIDD as follows:
(a)In Perth for no more than 3 consecutive days from 9am to 4pm during the day with the Father to provide to the Mother no less than 5 days’ notice.
(b)In Sydney when the Mother travels to Sydney, for no more than 3 consecutive days from 9am to 4pm during the day with the…

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 Kidd and Young

Details

AGLC: Kidd and Young [2016] FCCA 1935
Case: [2016] FCCA 1935
Decision Date: 20 July 2016

CaseChat Overview and Summary

The matter of *Kidd and Young* concerned parenting orders made by Judge Henderson in the Federal Circuit Court of Australia. The dispute involved the parents, Mr Kidd and Ms Young, and the arrangements for their child, X.

The court was required to determine issues relating to the child's residence, parental responsibility, and the prevention of the child's removal from Australia. Specifically, the court considered the terms of time spent between the child and each parent, and the measures necessary to ensure the child's presence within the Commonwealth.

Judge Henderson ordered that the child X live with her mother, Ms Young, and that both parents have equal shared parental responsibility. Crucially, the court issued significant orders to prevent the child from being taken out of Australia, including restraining Mr Kidd from removing the child, requesting the assistance of law enforcement to give effect to these orders, and placing the child's name on the Airport Watch List. The court also made specific provisions for the child to spend time with Mr Kidd, both in Perth and Sydney, and mandated daily Skype contact between the child and the father. The proceedings were subsequently transferred to the Family Court of Western Australia.

Orders

Orders of the court

That the child is X born (omitted) 2014 to live with her mother MS YOUNG.

That the parents, MS YOUNG and MR KIDD have equal shared parental responsibility for the child X.

Until further order MR KIDD and his servants and agents are restrained from taking or sending or attempting to take or send the child X, female, born (omitted) 2014 from the Commonwealth of Australia.

The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

The proceedings be transferred to the Family Court of Western Australia.

The child X born (omitted) 2014 is to spend time with her father MR KIDD as follows:

(a) In Perth for no more than 3 consecutive days from 9am to 4pm during the day with the Father to provide to the Mother no less than 5 days’ notice.

(b) In Sydney when the Mother travels to Sydney, for no more than 3 consecutive days from 9am to 4pm during the day with the Mother to provide to the Father no less than 28 days’ notice.

10.

The Mother is to cause the child to Skype the Father daily and is to use her best endeavours to have the child greet and engage with the Father.

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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