LUDLOW & NETTLE - [2018] FCCA 4002

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUDLOW & NETTLE

[2018] FCCA 4002

Catchwords:
FAMILY LAW – Interim parenting – best interests of the children – family violence.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 67U, 67V

Cases cited:

Banks & Banks (2015) FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240

Applicant:

MS LUDLOW

Respondent:

MR NETTLE

File Number:

PAC 5790 of 2018

Judgment of:

Judge Newbrun

Hearing date:

24 December 2018

Date of Last Submission:

24 December 2018

Delivered at:

Parramatta

Delivered on:

24 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Byrne

Solicitors for the Applicant:

Prime Lawyers

Counsel for the Respondent:

Ms Palos

Solicitors for the Respondent:

Selvaggio Lawyers

ORDERS

The mother’s recovery order application is dismissed.
Pending further order, the children shall live with the father.
Pending further order, the children shall spend time with the mother in accordance with the agreement of the parties.
The proceedings are adjourned for mention to 4 February 2019 at 9.30am. The Independent Children's Lawyer is requested to attend this mention.

IT IS NOTED that publication of this judgment under the pseudonym Ludlow & Nettle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5790 of 2018

MS LUDLOW

Applicant

And

MR NETTLE

Respondent

REASONS FOR JUDGMENT

These are reasons for judgment in the matter of Ludlow & Nettle. The subject children are [X], born … 2012, and [Y] and [Z], born … 2013.

Proposals

The mother seeks an urgent recovery order from the father in relation to the children, which is opposed by the father. The mother seeks other interim parenting orders, including an order that the children live with the mother; that the children spend time with the father supervised; and that the father attend anger management and parenting programs.
The father also seeks interim parenting orders that the children live him; the children spend time with the mother on a supervised basis; and other ancillary-related proposed interim parenting orders.
The focus of the parties at this urgent recovery order hearing has been the mother’s proposed recovery order application. No express submissions were made by either party as to their proposed time with orders and other proposed ancillary-related and interim parenting orders. The Court proposes to deal with the mother’s recovery order application accordingly, but subject to the Court’s remarks under section 60CC, subsection (3)(m) Family Law Act 1975 (Commonwealth) (the Act) below. The Court will have these proceedings returned to the Court in about six weeks’ time, when an Independent Children’s Lawyer will have entered the proceedings. Once fulsome material can be marshalled by the parties and the Independent Children’s Lawyer, an interim hearing can be conducted to consider relevant live with and time with issues and other relevant parenting-related issues.

Material Relied Upon by the Parties

The mother’s initiating application was filed 3 December 2018, and her affidavits were filed 3…

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 LUDLOW & NETTLE

Details

AGLC: Ludlow and Nettle [2018] FCCA 4002
Case: [2018] FCCA 4002
Decision Date: 24 December 2018

CaseChat Overview and Summary

In *Ludlow & Nettle*, heard by Judge Newbrun, the dispute concerned interim parenting orders for the children. The mother had applied for a recovery order, which was ultimately dismissed.

The court was required to determine the best interests of the children in circumstances where family violence was alleged. This involved assessing the appropriate living arrangements and time spent with each parent on an interim basis.

Judge Newbrun reasoned that the evidence did not support the mother's application for a recovery order. Applying the paramount consideration of the children's best interests, the court ordered that the children live with the father pending further order. The children were to spend time with the mother in accordance with the parties' agreement. The proceedings were adjourned for mention, with the Independent Children's Lawyer requested to attend.

Orders

Orders of the court

The mother’s recovery order application is dismissed.

Pending further order, the children shall live with the father.

Pending further order, the children shall spend time with the mother in accordance with the agreement of the parties.

The proceedings are adjourned for mention to 4 February 2019 at 9.30am. The Independent Children's Lawyer is requested to attend this mention.

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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