Mori and Sade - [2012] FMCAfam 1400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORI & SADE

[2012] FMCAfam 1400

FAMILY LAW – Interim arrangements for parenting of children aged 11, 9 & 7 – high conflict between the parties – husband wishes to take children on holiday to Bali for approximately three weeks in January 2013 – wife opposes overseas travel for children particularly to Bali given Australian Government warnings – husband has arranged holiday without reference to wife – wife asserts that the husband has behaved disingenuously – matters to be considered in respect of overseas travel – best interests.

Family Law Act 1975, ss.60B, 60CA, 60CC, 64B

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hang [2010] FamCA 617
Fredericks & Carrigan [2012] FMCAfam 663

Applicant:

MR MORI

Respondent:

MS SADE

File Number:

ADC 1454 of 2012

Judgment of:

Brown FM

Hearing date:

11 December 2012

Date of Last Submission:

11 December 2012

Delivered at:

Adelaide

Delivered on:

20 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Martin Robinson

Counsel for the Respondent:

Ms Read

Solicitors for the Respondent:

Lamont Black Lawyers

ORDERS

The final hearing before Federal Magistrate Brown on 15, 16 and 17 May 2013 at 10:00am is confirmed.
On or before 18 April 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 16 April 2013.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 2 May 2013.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 22 March 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

UNTIL FURTHER OR OTHER ORDER:

Orders 1, 2 and 3 of the orders made on 10 August 2012 shall continue.
The husband spend time with the children, in addition to…

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 Mori and Sade

Details

AGLC: Mori and Sade [2012] FMCAfam 1400
Case: [2012] FMCAfam 1400
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by the husband, Mr Mori, for permission to take his three children, aged 11, 9, and 7, on holiday to Bali for three weeks in January 2013, which was opposed by the wife, Ms Sade. The court had to decide whether it was in the best interests of the children to travel to Bali, considering factors such as the length of the trip, the risk of non-return, and the capacity of the husband to care for the children. The court found that while the trip would benefit the children's relationship with their father, three weeks was too long, given the children's ages and the strained relationship between the parents. The court also found that the risk of non-return and harm to the children in Bali was remote. The court ordered that the children could travel to Bali for ten days, with provisions for electronic communication with their mother and adjustments to their regular care arrangements.

Orders