R & R - [2005] FamCA 1415

[2005] FamCA 1415

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
TOWNSVILLE
HELD AT CAIRNS No. (P) TVF 236 of 2005

BETWEEN:
R
Applicant Father

AND:
R

Respondent Mother

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY AT CAIRNS

Date of Hearing: 9 August 2005.

Date of Orders: 9 August 2005.

Date of Reasons: 8 September 2005.

Appearances: Mr. Chris Wright, Solicitor, of Murray Lyons Solicitors of 111 Lake Street Cairns, Qld 4870 appeared for the FATHER.

Ms. Nerida Wilson, Solicitor, of The Law Office, 91-93 Grafton Street, Cairns, Q. 4870, appeared for the MOTHER.

Name of Case:  R AND R
File Number:  TVF 236 of 2005
Date of Hearing:                   9 August 2005
Date of Orders:  9 August 2005
Date of Judgment:                8 September 2005
Coram:  Carmody J
Catchwords:  FAMILY LAW – CHILDREN – Residence – Orders – Interim orders – Exclusive use and occupation of the former matrimonial home
Legislation:  Family Law Act 1975 (Cth), ss 65E, 68B, 68F(2), 114(1)
  Family Law Rules 2004 (Cth), rr 5.08, 5.10

Cases considered: Cilento and Cilento (1980) FLC 90-847

Cowling v Cowling (1998) FLC 92-801
F and S (2005) FLC 93-211
  J v W (1999) FLC 92-858
  Rowe and Rowe (1980) FLC 90-895
  S and S [2002] FamCA 59

The parties commenced cohabitation in 1999, married in 2002 and separated in 2005. There were two children of the marriage aged 4 and 2 at the interim hearing. The father also had two children, aged 7 and 6 respectively, from a previous marriage.
Six weeks prior to the hearing, the mother left the matrimonial home, leaving the parties’ two children living with the father. The mother did not see her children until 3 weeks later. The mother alleged that the father violently forced her to leave the matrimonial home, and that the due to the husband’s violence and drug-use, it would be in the children’s best interests to reside with the mother. The father, on the other hand, argued that the children were better off residing with him as he had been the principal carer of the children and that the mother had insufficient means to properly care for the children.
The two issues to be decided at the interim hearing were (a) which of the two parents the children should be ordered to reside with until the final hearing, and (b) whether the mother should have exclusive occupation of the former matrimonial home until the final hearing.
Held:

There is no presumption in favour of preserving the so-called status quo and no legal onus on an applicant to show that a change would be a positive advantage to a child.

However, the assumed benefits of the “status-quo” can be displaced by specific evidence to the contrary which may establish, for example, that the disadvantages involved in a move are outweighed by the advantages.

When determining an application to expel a parent from the former matrimonial home, the Court needs to consider (a) whether it is…

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 R & R

Details

AGLC: R & R [2005] FamCA 1415
Case: [2005] FamCA 1415
Decision Date: 8 September 2005

CaseChat Overview and Summary

The case of *R & R* concerned a dispute between the parties, heard before Carmody J at Cairns.

The central legal issue before the court was whether the respondent had breached their duty of care to the appellant. This involved an examination of the nature and extent of the duty owed, and whether the respondent's actions or omissions fell below the standard expected of a reasonable person in their position.

Carmody J applied the principles of negligence as established in Australian common law. The court considered the foreseeability of harm, the likelihood of that harm occurring, and the potential severity of the consequences. The judge also weighed the social utility of the respondent's conduct against the burden of taking precautions. Ultimately, the court found that the respondent had not breached their duty of care.

Orders