Newell & Warwick - [2022] FedCFamC2F 1726

Federal Circuit and Family Court of Australia
(DIVISION 2)
Newell & Warwick [2022] FedCFamC2F 1726

File number(s): MLC 12145 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 15 November 2022

Catchwords: FAMILY LAW – interim hearing – urgent application regarding unilateral relocation – father having daily time during school term – impact of floods on availability of accommodation did not require evidence – mother unable to find accommodation where she was living – circumspection when mother moves to town where her hew partner lives – what is practical – mother permitted to reside in new location.

Legislation:
Evidence Act 1995 (Cth), s 144

Family Law Act 1975 (Cth), ss 60CC, 65B, 65DAA, 65DAC, 69ZL

Cases cited:
AMS v AIF (1999) 199 CLR 160

Chetti & Bhavalakar [2022] FedCFamC2F 194

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode [2006] FamCA 1346

Keavney & Mohlis [2021] FCCA 396

Morgan & Miles (2007) FLC ¶93-343

Oswald & Karrington (2016) FLC ¶93-726

Sampson & Hartnett (No. 10) [2007] FamCA 1365

Stringer & Nissen (No. 2) (2019) FLC ¶93-922

Wilburn & Wilburn (2020) FLC ¶93-979

Division: Division 2 Family Law

Number of paragraphs: 42

Date of hearing: 15 November 2022

Place: City B

Counsel for the Applicant: Mr D. Carne

Solicitor for the Applicant: Ella Thompson Legal

Counsel for the Respondent: Ms A. Malik

Solicitor for the Respondent: Brooks Lawyers Pty Ltd
ORDERS

MLC 12145 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NEWELL

Applicant

AND:
MS WARWICK

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

15 NOVEMBER 2022

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children X born in 2009, Y born in 2012, and Z born in 2013 (the children).

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Care Arrangements
2.The children live with the mother.
3.The children spend time with the Father during the school term as follows:
(a)Each alternate weekend, from 4:00pm Friday until 5:00pm Sunday;
(b)Each Wednesday evening from the conclusion of school to 7:00pm, such time to occur in the City B area; and
(c)Such other times as may be agreed between the parties in writing.

AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Special Occasions
Mother’s special occasion time
4.If the children are in the care of the father pursuant to paragraph 3 of these orders, his time is suspended on the following days:
(a)On Christmas Day as follows:
(i)From 2:00pm 24 December until 2:00pm 25 December in even numbered years.
(ii)From 2:00pm 25 December until 2:00pm on 26 December in odd numbered years.

(b)At Easter as follows:
(i)From 3:30pm on the Thursday prior to Good Friday until 6:00pm Easter Saturday in even numbered years;
(ii)From 6:00pm Easter Saturday to 10:00am on the Tuesday following Easter Monday in odd numbered years.

(c)For the children’s birthdays and the Mother’s birthday:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If…

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 Newell & Warwick

Details

AGLC: Newell & Warwick [2022] FedCFamC2F 1726
Case: [2022] FedCFamC2F 1726
Decision Date

CaseChat Overview and Summary

The case of Newell & Warwick [2022] FedCFamC2F 1726 concerns an urgent interim application filed by the father, Mr Newell, seeking orders regarding the living arrangements of his three children with the mother, Ms Warwick. The matter was heard by Judge O'Shannessy in the Federal Circuit and Family Court of Australia, and judgment was delivered on 15 November 2022. The primary legal issue in this case was whether the mother should be permitted to relocate with the children from the City B area to Town G, and if so, what the living arrangements and parenting orders should be. The court considered the impact of the mother's relocation on the children's best interests and the promotion of a meaningful relationship with both parents, as required by the Family Law Act 1975 (Cth).

Judge O'Shannessy found that it was not practical for the mother to relocate back to the City B area, as she had been unable to secure accommodation in that area. The court took into account the recent floods in the area, which had rendered many houses uninhabitable and made it difficult to obtain rental accommodation. The judge also noted the significant change in the children's lives, including the change of schools and extracurricular activities, if they were to reside with the father. The court found that it was not in the children's best interests to radically change their living arrangements on an interim basis.

The court ordered that the children continue to live with the mother in Town G, and that the father have regular time with the children, including alternate weekend time and some time during the school term. The court also ordered that the parties have equal shared parental responsibility for the children and that each party facilitate communication between the children and the other parent. The case was adjourned for a final hearing on 30 May 2023.

Orders