Sadberry and Jablon (No.1) - [2014] FCCA 1101

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADBERRY & JABLON (No.1)

[2014] FCCA 1101

Catchwords:
FAMILY LAW – Stay Application.

Anderson & Senior (Stay Appeal) [2013] FamCAFC 152
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No.2) [2008] FamCAFC 194
Jennings Construction Limited v Burgundy Royal Investment Pty Ltd (1986) 16 CLR 681
Carlon & Carlon (1977) FLC90-320

Applicant:

MS SADBERRY

Respondent:

MR JABLON

File Number:

DUC 300 of 2013

Judgment of:

Judge Dunkley

Hearing date:

27 May 2014

Date of Last Submission:

27 May 2014

Delivered at:

Parramatta

Delivered on:

30 May 2014

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Perkins

Solicitors for the Applicant:

Queensland Lawyers

Counsel for the Respondent:

Ms Obradovic

Solicitors for the Respondent:

Peacockes

ORDERS

The Application in a Case filed 30 April 2014 is dismissed.
Order 2 made 20 March 2014 is discharged and in lieu thereof:
(a)By not later than 6 July 2014 the mother is to cause the child X born (omitted) 2012 to be resident in (omitted) New South Wales or in (omitted) New South Wales.
(b)The father is to pay the mother’s reasonable relocation costs from (omitted) Queensland to (omitted) New South Wales or (omitted) New South Wales.
(c)The father is to pay to the mother pending further order by way of urgent spousal maintenance the sum of $100 per week first such payment to be due on date that the mother signs a lease for premises in either (omitted) New South Wales or (omitted) New South Wales with such further payment of $100 per week to be paid by the father to the mother each subsequent seven days.

IT IS NOTED that publication of this judgment under the pseudonym Sadberry & Jablon (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 300 of 2013

MS SADBERRY

Applicant

And

MR JABLON

Respondent

REASONS FOR JUDGMENT

This is the decision arising from the stay of orders sought by Ms Sadberry in an Application in a Case E-filed on 30 April 2014.
Mr Jablon opposes the granting of a stay with respect to the orders made on 20 March 2014.

Procedural History

On 16 August 2013 Mr Jablon (hereinafter the father) filed an Initiating Application in the Local Court at Dubbo which was given a first return date in that Court on 16 August 2013.
In that Application he sought final parenting orders. He also sought interim parenting orders and procedural parenting orders for parentage testing.
When it came before the Local Court Magistrate it was unserved and the Application was adjourned to 23 August 2013.
On 23 August 2013 the Local Court Magistrate made orders for substituted service and the case was adjourned to 2 September 2013.
On 2 September 2013 there was no appearance by Ms Sadberry (hereinafter the mother). Undefended the Local Court Magistrate made the order for parentage testing to determine the paternity of the child X…

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.

Keep reading for free

Create a free CaseChat account to read Sadberry and Jablon (No.1) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 1101
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the matter of *Sadberry and Jablon (No.1)*, Judge Dunkley of the Family Court of Australia considered an application concerning parenting arrangements for a child, X, born in 2012. The dispute involved the mother's desire to relocate with the child from Queensland to New South Wales, and the father's opposition to this move.

The court was required to determine whether to grant the mother's application to relocate the child to New South Wales. This involved assessing the best interests of the child, considering the practicalities of the proposed move, and addressing the financial implications for both parties, including relocation costs and spousal maintenance.

Judge Dunkley reasoned that the mother's proposed relocation was in the child's best interests, facilitating a more stable and consistent living arrangement. The court ordered that the mother was to cause the child to reside in New South Wales by 6 July 2014. Furthermore, the father was ordered to pay the mother's reasonable relocation costs. Pending further order, the father was also directed to pay the mother urgent spousal maintenance of $100 per week, commencing from the date the mother signed a lease for premises in New South Wales.

Orders

Orders of the court

The Application in a Case filed 30 April 2014 is dismissed.

Order 2 made 20 March 2014 is discharged and in lieu thereof:

(a) By not later than 6 July 2014 the mother is to cause the child X born (omitted) 2012 to be resident in (omitted) New South Wales or in (omitted) New South Wales.

(b) The father is to pay the mother’s reasonable relocation costs from (omitted) Queensland to (omitted) New South Wales or (omitted) New South Wales.

(c) The father is to pay to the mother pending further order by way of urgent spousal maintenance the sum of $100 per week first such payment to be due on date that the mother signs a lease for premises in either (omitted) New South Wales or (omitted) New South Wales with such further payment of $100 per week to be paid by the father to the mother each subsequent seven days.

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.