Ryan and Russell - [2013] FamCA 787

FAMILY COURT OF AUSTRALIA

RYAN & RUSSELL

[2013] FamCA 787

FAMILY LAW – CHILDREN – INTERIM ORDERS – With whom a child lives – where the applicant father seeks orders providing for the child to live with him in Australia – where the respondent mother seeks orders providing for the child to live with her in Country J – best interests – orders made providing for the child to live in Australia with the father and to spend time with the mother in Australia as agreed between the parties.

Family Law Act 1975 (Cth) s 60CA; 60CC; 61DA; 64B; 65AA; 65DAA
Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children

Cilento & Cilento (1980) 6 Fam LR 35
ZP v PS (1994) 181 CLR 639
Cowling & Cowling (1998) 22 Fam LR 776
Goode & Goode (2006) 36 Fam LR 422
Kwon & Lee [2006] FLC 93-287
Karim & Khalid [2007] FLC 93-348
Morgan & Miles [2007] FLC 93-343
McCall & Clark [2009] FLC 93-405
Zabini & Zabini [2010] FamCAFC 10
MRR v GR (2010) 240 CLR 461
Marvel & Marvel (2010) 43 Fam LR 348
Pascarl & Oxley [2013] FLC 93-536

APPLICANT:

Mr Ryan

RESPONDENT:

Ms Russell

FILE NUMBER:

ADC

2409

2013

DATE DELIVERED:

4 October 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

13 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke, QC

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon Lawyers

Orders

BY WAY OF INTERIM ORDER AND UNTIL FURTHER ORDER:

The mother and father do have equal shared parental responsibility for the child B (the child) born on the … 2009.
The child B do live with the father.
The mother spend time with the child in Australia as agreed in writing between the parties and failing agreement that the mother have liberty to apply to the Court on short notice.
The father make the child available for communication by Skype with the mother on two [2] occasions per week at times to be agreed between the parties in writing and failing agreement at 6.00 pm Friday and 6.00 pm Tuesday each week.
Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child B born on the … 2009 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.
Consideration of the final orders sought in the father’s Initiating Application filed 4 July 2013 and the mother’s Response filed 20 August 2013 are adjourned to a date to…

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 Ryan and Russell

Details

AGLC: Ryan and Russell [2013] FamCA 787
Case: [2013] FamCA 787
Decision Date: 4 October 2013

CaseChat Overview and Summary

In the matter of *Ryan and Russell*, Dawe J of the Federal Circuit Court of Australia considered an application concerning the parenting arrangements for a child born in 2009. The dispute involved the mother and father, who sought final orders regarding their parental responsibilities and the child's living arrangements.

The court was required to determine the appropriate interim orders for parental responsibility, the child's residence, and the time the child would spend with each parent. Additionally, the court needed to consider the child's independent representation and the continuation of existing interim orders.

Dawe J made interim orders for equal shared parental responsibility, with the child to live with the father. The mother was to spend time with the child in Australia as agreed in writing, with liberty to apply to the court if no agreement was reached. The father was also ordered to make the child available for two Skype communications per week with the mother, at times to be agreed or at specified times if agreement failed. Pursuant to section 68L of the *Family Law Act 1975*, the child was to be independently represented, with arrangements to be made by the Legal Service Commission of South Australia, and both parties were to provide documents to expedite this appointment. Consideration of the final orders was adjourned to a date to be fixed as a matter of priority, and certain paragraphs of previous orders made by Judge Cole were continued in operation.

Orders

Orders of the court

BY WAY OF INTERIM ORDER AND UNTIL FURTHER ORDER:

The mother and father do have equal shared parental responsibility for the child B (the child) born on the … 2009.

The child B do live with the father.

The mother spend time with the child in Australia as agreed in writing between the parties and failing agreement that the mother have liberty to apply to the Court on short notice.

The father make the child available for communication by Skype with the mother on two [2] occasions per week at times to be agreed between the parties in writing and failing agreement at 6.00 pm Friday and 6.00 pm Tuesday each week.

Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child B born on the … 2009 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

Consideration of the final orders sought in the father’s Initiating Application filed 4 July 2013 and the mother’s Response filed 20 August 2013 are adjourned to a date to be fixed by the Registrar as a matter of priority.

Paragraphs 3, 4, 5, 6, and 7 of the Orders made on 24 July 2013 by the Honourable Judge Cole of the Federal Circuit Court of Australia do continue in operation until further order.

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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