McCREADIE & Oram & Anor (No.3) - [2018] FCCA 2318

FEDERAL CIRCUIT COURT OF AUSTRALIA

McCREADIE & ORAM & ANOR (No.3)

[2018] FCCA 2318

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MS MCCREADIE

First Respondent:

MS ORAM

Second Respondent:

MR LAMBERT

File Number:

NCC 2354 of 2016

Judgment of:

Judge Terry

Hearing date:

31 January 2018

Date of Last Submission:

31 January 2018

Delivered at:

Newcastle

Delivered on:

31 January 2018

REPRESENTATION

Solicitors for the Applicant:

Kaberry Family Law

Counsel for the First Respondent:

Mr Rugendyke

Solicitors for the First Respondent:

Birtles Legal

Counsel for the Second Respondent:

Mr Bithrey

Solicitors for the Second Respondent:

Moin & Associates

Solicitors for the Independent Children’s Lawyer:

Emalene Gemmell Solicitor

THE COURT ORDERS ON AN INTERIM BASIS THAT:

All orders concerning the children [X] born 2011 and [Y] born 2012 (“the children”) spending time with the mother and the maternal grandmother are suspended.
The children shall be returned to the father by means of him collecting them from the home of the maternal grandmother at 8.30pm on 31 January 2018.
The mother and the maternal grandmother may spend time with the children in Town A on any weekend where they are willing and able to take part in time in Town A supervised by Town A Children’s Contact Centre NOTING THAT the court understands that Town A Children’s Contact Centre offer a private supervision service which may be available if the mother and the maternal grandmother are able to pay for the service.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The directions hearing listed on 1 March 2018 is vacated.
This matter is adjourned to 10.00am on 26 March 2018 (3 days) for final hearing.
Both parties are to file any amended application or response and one trial affidavit of themselves and one trial affidavit of any witnesses they intend to call at the hearing by 4.00pm on 23 February 2018 NOTING THAT the parties and their witnesses may only rely on one affidavit each and the Court will strike out any paragraph in those trial affidavits which seeks to incorporate into that affidavit by reference to paragraph numbers, annexing a copy of previous affidavits or any other means any material contained in earlier affidavits of that deponent.
Unless eligible for an exemption, the applicant is to pay to the Family Law Courts at Newcastle the setting down for hearing fee of $605.00 by 23 February 2018.
The applicant is also required to pay not less than four (4) working days prior to the hearing date the daily hearing fee of $605.00 for each additional hearing day after the first day of hearing.
Each party and the Independent Children’s Lawyer shall file and serve an outline of case document by 4.00pm on 23 March 2018 setting out:
(a)a precise minute of order sought;
(b)a list of documents to be read in their case;
(c)a chronology;
(d)a list of issues for determination; and
(e)a brief summary of argument.
The Independent Children's Lawyer shall promptly notify 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.

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Details

Case: [2018] FCCA 2318
Decision Date: 31 January 2018

CaseChat Overview and Summary

The case of McCreadie & Oram & Anor (No.3) concerned a dispute between the plaintiff, McCreadie, and the defendants, Oram and another. The proceedings before Terry J involved an application for an interlocutory injunction.

The primary legal issue before the court was whether the plaintiff had established a sufficient likelihood of success in the substantive proceedings to warrant the grant of an interlocutory injunction. This required the court to consider the strength of the plaintiff's case on its merits and the potential for irreparable harm if the injunction was not granted.

Terry J applied the principles governing the grant of interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that damages would not be an adequate remedy. The court considered the evidence presented by both parties in relation to the alleged breaches of contract and the potential consequences of those breaches. The judge's reasoning focused on assessing the balance of convenience between the parties and the potential prejudice each would suffer depending on the court's decision.

The court ultimately granted the interlocutory injunction, finding that the plaintiff had satisfied the necessary threshold for its grant.

Orders