Madar & McCormack - [2021] FedCFamC2F 500

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Madar & McCormack [2021] FedCFamC2F 500

File number(s): ADC 1045 of 2020

Judgment of: JUDGE DICKSON

Date of judgment: 23 November 2021

Catchwords: FAMILY LAW – parenting – interim hearing – where mother unilaterally relocated from City B to Town C without father’s knowledge or consent – where father seeks that the child and mother be returned to the City B area on an interim basis – where father further seeks that his time with the children commence on an unsupervised and increased basis – where on the available evidence the father’s time should increase and become unsupervised – where the Court declines to return the mother to City B on an interim basis – where the issue of relocation will be dealt with at final hearing

Legislation: Family Law Act 1975 (Cth) Pt VII ss 61DA, 60CA, 60CC

Cases cited:
Dieter & Dieter [2011] FamCAFC 82

Edgar & Strofield [2016] FamCAFC 93; (2016) FLC 93-711

Goode & Goode (2006) FLC 93-286

Hartland & Hartland [2020] FCCA 937

Slater & Light [2013] FamCAFC 4

Vaughton & Randle [2014] FamCA 147

Division: Division 2 Family Law

Number of paragraphs: 131

Date of hearing: 22 November 2021

Place: Adelaide

Solicitor for the Applicant: Mr Siklich of Howe Jenkin

Counsel for the Respondent: Ms Pangallo

Solicitor for the Respondent: R J Cole & Partners
ORDERS

ADC 1045 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MADAR

Applicant

AND:
MS MCCORMACK

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

23 NOVEMBER 2021

THE COURT ORDERS THAT:
1.Paragraphs 1 and 2 of the orders made on 3 August 2021 be discharged.
2.Paragraphs 1 and 2 of the orders made on 23 December 2020 be discharged.
3.Paragraph 1 of the orders made on 25 June 2020 be discharged.
4.The child, X born in 2019 do live with the mother.
5.The said child do spend unsupervised time with the father as follows:
(a)On Tuesday 23 November 2021 from 3.30pm to 6.30pm;
(b)In week one, being Friday 26 November 2021 and Saturday 27 November 2021, between the hours of 8.00am and 1.00pm on each day and each alternate weekend thereafter;
(c)In week two, on Saturday 4 December 2021 and Sunday 5 December 2021 between the hours of 8.00am and 1.00pm on each day and each alternate weekend thereafter;
(d)For the purposes of Christmas Day 2021 from 8.00am to 2.00pm;
(e)On the child’s birthday, in 2022, from 8.00am to 2.00pm;
(f)As and from February 2022, the time in weeks one and two be extended such that such time conclude at 2.00pm on each occasion;
(g)As and from March 2022, the time in weeks one and two be extended such that the time conclude at 3.00pm on each occasion;
(h)As and from April 2022, the time in weeks one and two be extended such that time conclude at 4.00pm on each occasion.

6.The child spend time with the father by way of video call…

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 Madar & McCormack

Details

AGLC: Madar & McCormack [2021] FedCFamC2F 500
Case: [2021] FedCFamC2F 500
Decision Date

CaseChat Overview and Summary

This case concerns a parenting application filed by Mr Madar (the father) against Ms McCormack (the mother) following their separation in November 2019. The central issues in dispute between the parties were whether the father's time with the child, X, should increase and become unsupervised, whether the mother should be permitted to remain living in Town C, and whether the father should be restrained from consuming alcohol or illicit substances while caring for X. The court found that the time has come for the strict requirement for supervision to be discharged. The court further found that the time has come for X's time spending with his father to increase, but it will have to occur on weekends in circumstances where the mother wishes to remain living in Town C and the father is required to work during the day on weekdays. The court declined to order on an interim basis that the mother return X's primary place of residence to the City B area, and the mother was permitted to remain living in Town C on an interim basis only pending trial. The court further found that the mother should be restrained from relocating the child's principal place of residence from Town C, South Australia, save and except with the father's prior written consent or an order of this Court. The court also found that the father should be restrained from drinking alcohol or consuming any illicit substances whilst the child is in his care.

Orders