Pollard and Nordberg - [2019] FCCA 1359

FEDERAL CIRCUIT COURT OF AUSTRALIA

POLLARD & NORDBERG

[2019] FCCA 1359

Catchwords:
FAMILY LAW – Parenting – stay application pending determination of appeal from decision – the Magistrates’ Court order that the mother and children return to Victoria – oldest child not father’s biological child – biological father not served.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Applicant:

MR POLLARD

Respondent:

MS NORDBERG

File Number:

DGC 1312 of 2019

Judgment of:

Judge Harland

Hearing date:

17 May 2019

Date of Last Submission:

17 May 2019

Delivered at:

Melbourne

Delivered on:

17 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms Southey

Solicitors for the Applicant:

Warren Graham & Murphy

Counsel for the Respondent:

Mr Moore

Solicitors for the Respondent:

Foye Legal Pty Ltd

ORDERS

The Interim Orders made by the Magistrates’ Court of Victoria at Town A on 16 April 2019 be stayed.
The Orders made by the Magistrates’ Court of Victoria at Town A on 8 May 2019 be suspended.
The mother’s solicitors provide the father’s solicitors with Mr B’s contact details including telephone number and address, within 24 hours.
Thereafter, the father’s solicitors serve Mr B with the documents in the proceedings forthwith.
The parties’ costs for today’s proceedings be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Pollard & Nordberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1312 of 2019

MR POLLARD

Applicant

And

MS NORDBERG

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is the mother’s application for a stay of orders made in the Magistrates’ Court pending her appeal to the Family Court of those orders. The matter has a somewhat fractured history. I have had the benefit of detailed submissions from both Counsel this morning. I will not repeat all of the submissions and set out all the evidence, given the time pressures.
The chronology of the matter is as follows. Until 7 February 2019, the parties were living together in rented accommodation in Victoria. There are two children of the relationship; [X], born … 2016, and [Y] born … 2018. The mother also has a child from a previous relationship, [C], born … 2009 who also lived in the household with the parties.
On 7 February 2019, the mother took the three children to Town D. It is clear from the evidence, including text exchanges between the parties, that she did not inform the father that that was a permanent move, and on his case, did not inform him initially that she was taking the children at all. She initially indicated that she had taken them for a holiday to spend time with her family in Town D. It is apparent for the next couple…

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 Pollard and Nordberg

Details

AGLC: Pollard and Nordberg [2019] FCCA 1359
Case: [2019] FCCA 1359
Decision Date: 17 May 2019

CaseChat Overview and Summary

In the matter of *Pollard and Nordberg*, the Supreme Court of Victoria was asked to consider an appeal concerning interim and final orders made by the Magistrates’ Court of Victoria at Town A. The proceedings involved a dispute between a mother and a father regarding their child.

The central legal issues before the Supreme Court were whether the interim orders made on 16 April 2019 should be stayed and whether the final orders made on 8 May 2019 should be suspended pending further determination. The court was also required to consider the appropriate directions for service of documents and the provision of contact details for a Mr B.

The Supreme Court, in its reasoning, determined that a stay of the interim orders and a suspension of the final orders were warranted. The court directed that the mother's solicitors were to provide the father's solicitors with Mr B's contact details, including his telephone number and address, within 24 hours. Subsequently, the father's solicitors were to serve Mr B with the relevant documents in the proceedings forthwith. The costs of the proceedings before the Supreme Court were reserved.

Orders

Orders of the court

The Interim Orders made by the Magistrates’ Court of Victoria at Town A on 16 April 2019 be stayed.

The Orders made by the Magistrates’ Court of Victoria at Town A on 8 May 2019 be suspended.

The mother’s solicitors provide the father’s solicitors with Mr B’s contact details including telephone number and address, within 24 hours.

Thereafter, the father’s solicitors serve Mr B with the documents in the proceedings forthwith.

The parties’ costs for today’s proceedings be reserved.

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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