FAMILY COURT OF AUSTRALIA
| PENDER & HAYWARD | [2007] FamCA 1526 |
| FAMILY LAW - APPEAL – INTERIM PARENTING ORDERS – Whether Federal Magistrate erred in the exercise of discretion in making interim parenting orders which provide for two and a half year old twins to live with the respondent father in Sydney – Where mother asserted she was temporarily required to relocate from New South Wales to Queensland following a family emergency – Where mother’s undertaking as to removal of children breached by taking the children to Queensland – Whether the Federal Magistrate erred in applying the presumption of equal shared parental responsibility – Whether there was evidence to rebut the presumption – As not being in the best interests of the children – Where Federal Magistrate found parties had a co-operative parenting regime - Federal Magistrate did not err in making order for equal shared parental responsibility – Whether Federal Magistrate erred in the exercise of his discretion in failing to address the competing proposals of the parties – Whether Federal Magistrate failed to adequately address the mother’s proposals, including effect on the children of separation from their primary caregiver and half sibling – Whether Federal Magistrate failed to consider the practicalities of the mother maintaining a meaningful relationship with the children whilst she lived in Queensland - Appeal allowed – Remitted for a further interim hearing (if circumstances require further interim orders). FAMILY LAW - COSTS – Appeal against interim orders allowed – Certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to each party for the appeal and re-hearing (if necessary). |
| Family Law Act 1975 (Cth) Part VII, s 4, s 60CC, s 61DA Bennett & Bennett (1991) FLC 92-191 |
| APPELLANT: | Ms Pender |
| RESPONDENT: | Mr Hayward |
| FILE NUMBER: | SYC | 5726 | of | 2007 |
| APPEAL NUMBER: | EA | 113 | of | 2007 |
| DATE DELIVERED: | 21 December 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 28 November 2007 |
LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 713 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Norman & Kingston |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Fox O’Brien |
Orders
That the appeal is allowed.
That the orders made by Federal Magistrate Kemp on 18 September 2007 be set aside.
That the father’s application for interim parenting orders filed 14 August 2007 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Kemp as soon as practical.
That the Court grants to the appellant mother a costs…
Continue reading Pender & Haywood
Sign in free to access the full text
- AGLC
- Pender & Haywood [2007] FamCA 1526
- Case
- [2007] FamCA 1526
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Federal Magistrate erred in the exercise of his discretion in making the interim parenting orders. Specifically, the appeal raised questions as to whether the presumption of equal shared parental responsibility was correctly applied, whether there was sufficient evidence to rebut this presumption on the grounds that it was not in the children's best interests, and whether the Federal Magistrate adequately addressed the competing proposals of the parties, including the impact on the children of separation from their primary caregiver and half-sibling, and the practicalities of the mother maintaining a meaningful relationship with the children whilst residing in Queensland.
The Full Court found that the Federal Magistrate did not err in making an order for equal shared parental responsibility, having found that the parties had a co-operative parenting regime. However, the Court concluded that the Federal Magistrate had failed to adequately address the mother's proposals and the practical implications for the children and the mother's relationship with them. Consequently, the appeal was allowed, and the interim orders were set aside.
The father's application for interim parenting orders was remitted for re-hearing before a different Federal Magistrate. The Court also granted costs certificates to both the appellant mother and the respondent father in relation to the appeal and the potential re-hearing.
Orders
Orders of the court
1.
That the appeal is allowed.
2.
That the orders made by Federal Magistrate Kemp on 18 September 2007 be set aside.
3.
That the father’s application for interim parenting orders filed 14 August 2007 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Kemp as soon as practical.
4.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
5.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
6.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the re-hearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.