Radcliffe and Sayer and Anor - [2013] FCCA 1875

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADCLIFFE & SAYER & ANOR

[2013] FCCA 1875

Catchwords:

FAMILY LAW – Parenting orders – relocation – two children with different fathers – both fathers living in Darwin – mother proposes relocation to (omitted) in Queensland – mother relocates contrary to orders of Court twice during the course of proceedings – power of Court to order a parent to live in a particular locality – legislative pathway.

Legislation:

Family Law Act 1975 ss.60, 61, 64, 65, 66, 68, 69, 114
Care and Protection of Children Act (NT)

Radcliffe v Sayer & Anor [2012] FMCAfam 342
Sayer & Radcliffe & Anor [2012] FamCAFC 209
AMS v AIF; AIF v AMS (1999) FLC 92-852
Starr v Duggan [2009] FamCAFC 115
Heaton v Heaton [2012] FamCAFC 139
Rice v Asplund (1979) FLC 90-725
Hudson v Hudson [2009] FMCAfam 792
Mills v Watson [2008] FMCAfam 2
Sampson v Hartnett (No.10) [2007] FLC 93-350

Applicant:

MR RADCLIFFE

First Respondent:

MS SAYER

Second Respondent:

MR BANDEN

File Number:

DNC 280 of 2011

Judgment of:

Judge Lindsay

Hearing dates:

3, 4 and 5 June 2013

Date of Last Submission:

2 July 2013

Delivered at:

Adelaide

Delivered on:

15 November 2013

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnall Lawyers

Counsel for the First Respondent:

Mr Glenday of Counsel

Solicitors for the First Respondent:

Csg Law And Story & Associates

Counsel for the Second Respondent:

Mr Story

Solicitors for the Second Respondent:

Story and Associates

ORDERS

I adjourn the pronouncement of orders in accordance with these reasons to Monday 25 November 2013 at 3.30pm.
During the adjournment the children X born on (omitted) 2007 and Y born on 20 September 2010 live with the applicant Mr Radcliffe.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNC 280 of 2011

MR RADCLIFFE

Applicant

And

MS SAYER

First Respondent

And

MR BANDEN

Second Respondent

REASONS FOR JUDGMENT

This case involves competing applications for parenting orders in relation to 2 children. The eldest, X was born on (omitted) 2007. She is a child of the first respondent and second respondent. The other child is Y born (omitted) 2010. She is a child of the applicant and the first respondent.
I will refer to the first respondent throughout these reasons as the mother, to the applicant as Mr Radcliffe and to the second respondent as Mr Banden.
Mr Radcliffe seeks orders that will facilitate time-spent between him and both children. The mother opposes him having time-spent with X. The mother and Mr Banden are in broad agreement as to the terms of the exercise of time-spent by him with X.
The case, and the applications of the parties, are complicated by the relocation aspect. Both fathers live in Darwin. The mother wishes to live in (omitted), Queensland. If I order that the children or either of…

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.

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Details

Case: [2013] FCCA 1875
Decision Date: 15 November 2013

CaseChat Overview and Summary

In *Radcliffe and Sayer and Anor*, heard by Judge Lindsay, the dispute concerned parenting orders for two children, X and Y, who had different fathers. The mother proposed relocating the children to Queensland, despite both fathers residing in Darwin. The mother had relocated the children contrary to court orders on two occasions during the proceedings.

The central legal issues before the Court were whether it possessed the power to order a parent to live in a particular locality and the appropriate legislative pathway for such an order. The Court was also required to consider the implications of the mother's prior non-compliance with court orders regarding the children's residence.

Judge Lindsay's reasoning focused on the Court's inherent jurisdiction and the legislative framework governing parenting orders. The Court acknowledged the significant disruption caused by the mother's repeated relocations and the impact on the children's stability and relationship with their fathers. The Court considered the paramountcy of the children's welfare and the need for orders that would ensure their best interests were met, including the potential for the Court to mandate a specific place of residence for a parent.

The pronouncement of final orders was adjourned to 25 November 2013. In the interim, the Court ordered that the children, X and Y, live with the applicant, Mr Radcliffe.

Orders

Orders of the court

I adjourn the pronouncement of orders in accordance with these reasons to Monday 25 November 2013 at 3.30pm.

During the adjournment the children X born on (omitted) 2007 and Y born on 20 September 2010 live with the applicant Mr Radcliffe.

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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