Meadis and Meadis and Ors - [2018] FCCA 3787

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEADIS & MEADIS & ORS

[2018] FCCA 3787

Catchwords:
FAMILY LAW – Interim relocation – alleged family violence – serious incident of alleged family violence – child with special needs – safety of the Mother – effects of family violence on parenting capacity – relocation permitted.

FAMILY LAW – Application in a Case – Paternal Grandparents’ application – application for time with children – significant involvement in the children’s lives – overnight time.

Legislation:

Evidence Act 1995 (Cth), s.128

Family Law Act 1975 (Cth), ss.4AB, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A),

60CC(3), 60CC(3)(i)

Cases cited:

AMS v AIF; AIF v AMS (1999) FLC 92-852

KB & TC [2005] FamCA 458

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode [2006] FamCA 1346

H&H [2005] FamCA 805

Morgan & Miles [2007] FamCA 1230

Paksandy & Paksandy [1999] FamCA 1889

SS & AH [2010] FamCAFC 13

Weissensteiner v R [1993] HCA 65

Applicant:

MR MEADIS

First Respondent:

MS MEADIS

Second Respondents:

MR G MEADIS AND MS H MEADIS

File Number:

MLC 11834 of 2016

Judgment of:

Judge Stewart

Hearing date:

14 November 2018

Date of Last Submission:

14 November 2018

Delivered at:

Shepparton

Delivered on:

15 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Carne

Solicitors for the Applicant:

SMR Legal

Counsel for the First Respondent:

Mr Nicholson

Solicitors for the First Respondent:

Harris Lieberman Solicitors

Counsel for the Second Respondents:

Mr Puckey

Solicitors for the Second Respondents:

Dawes & Vary Riordan

Counsel for the Independent Children’s Lawyer

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Joliman Lawyers

ORDERS

Pursuant to section 11F of the Family Law Act 1975 the Mother and the Paternal Grandparents attend a Child Inclusive Child Dispute Conference on 30 April 2019 with a Family Consultant nominated by the Director of Child Dispute Services to discuss the welfare of the children X born … 2006, Y born … 2008 and Z born … 2010 (collectively, “the children”) and endeavour to resolve the differences between them. The Mother is to attend at the Melbourne Registry (305 William Street, Melbourne) with the children at 9.00am and the Paternal Grandparents are to attend at 10.00am.
Upon the oral application of Counsel for the Paternal Grandfather, the Paternal Grandfather and Paternal Grandmother be jointly joined to these proceedings as Second Respondents, and for the purposes of this order they file a Response within 28 days of the date hereof.
The proceedings are adjourned to 16 November 2018 at 10.00am for mention.
The proceedings are further adjourned to 14 May 2019 at 2.00pm for interim defended hearing (“the adjourned date”).
The reasons of this day be transcribed, revised, placed on the Court file and made available to the parties.

AND THE COURT NOTES THAT:
A.In the event that the Father wishes to attend via Videolink on the adjourned date, the solicitors for the Father must notify Chambers of same no less than 21 days prior to the adjourned date.

IT IS NOTED that publication of this judgment under 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 3787
Decision Date: 15 November 2018

CaseChat Overview and Summary

In *Meadis and Meadis and Ors*, heard by Judge Stewart, the proceedings concerned an application by the Mother for interim relocation of the children, X, Y, and Z, and an application by the Paternal Grandparents for time with the children, including overnight time. The dispute was complicated by allegations of serious family violence and the fact that one of the children has special needs.

The court was required to determine whether to permit the Mother's interim relocation of the children, considering the alleged family violence and its impact on the Mother's safety and parenting capacity. Additionally, the court had to consider the Paternal Grandparents' application for time with the children, given their significant involvement in the children's lives.

Judge Stewart's reasoning focused on the paramountcy of the children's welfare. The court acknowledged the serious allegations of family violence and the need to ensure the Mother's safety and her capacity to parent. The court also recognised the Paternal Grandparents' existing relationship with the children. The court ordered that the Mother and Paternal Grandparents attend a Child Inclusive Child Dispute Conference to discuss the children's welfare and attempt to resolve their differences. The Paternal Grandparents were also joined as Second Respondents to the proceedings. The matter was adjourned for mention and subsequently for an interim defended hearing.

Orders

Orders of the court

Pursuant to section 11F of the Family Law Act 1975 the Mother and the Paternal Grandparents attend a Child Inclusive Child Dispute Conference on 30 April 2019 with a Family Consultant nominated by the Director of Child Dispute Services to discuss the welfare of the children X born … 2006, Y born … 2008 and Z born … 2010 (collectively, “the children”) and endeavour to resolve the differences between them. The Mother is to attend at the Melbourne Registry (305 William Street, Melbourne) with the children at 9.00am and the Paternal Grandparents are to attend at 10.00am.

Upon the oral application of Counsel for the Paternal Grandfather, the Paternal Grandfather and Paternal Grandmother be jointly joined to these proceedings as Second Respondents, and for the purposes of this order they file a Response within 28 days of the date hereof.

The proceedings are adjourned to 16 November 2018 at 10.00am for mention.

The proceedings are further adjourned to 14 May 2019 at 2.00pm for interim defended hearing (“the adjourned date”).

The reasons of this day be transcribed, revised, placed on the Court file and made available to the parties.

AND THE COURT NOTES THAT:

A. In the event that the Father wishes to attend via Videolink on the adjourned date, the solicitors for the Father must notify Chambers of same no less than 21 days prior to the adjourned date.

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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