Salway & Hackley & Anor - [2013] FMCAfam 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALWAY & HACKLEY & ANOR

[2013] FMCAfam 328

FAMILY LAW – Parenting dispute – earlier orders made to transition child from primary care of grandmother to mother – mother having to leave Australia – child not transitioning to mother – child still primarily attached to grandmother – child’s primary attachment at risk – orders made for child to live with grandmother.

Family Law Act 1975, ss.60B, 60CC, 60CC(2)(b), 60CC(3)

Aldridge v Keaton (2009) FLC 93-421
Mulvany v Lane (2009) FLC 93-404
Goode v Goode [2006] FamCA 1346

Applicant:

MS SALWAY

First Respondent:

MR HACKLEY

Second Respondent:

MS HACKLEY

File Number:

MLC 5136 of 2012

Judgment of:

Burchardt FM

Hearing dates:

8 & 9 October 2012 and 21, 22 & 28 March 2013

Date of Last Submission:

28 March 2013

Delivered at:

Melbourne

Delivered on:

10 April 2013

REPRESENTATION

Counsel for the Applicant:

Ms Phelan

Solicitors for the Applicant:

Women’s Legal Service Victoria

Counsel for the First Respondent:

Ms Dunlop

Solicitors for the First Respondent:

Fiona R. McGregor

Counsel for the Second Respondent:

Ms Boymal

Solicitors for the Second Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Dowler

Solicitors for the Independent Children’s Lawyer:

Septimus Jones & Lee

THE COURT ORDERS:

That subject to Order 19 all previous Orders be discharged.
That the paternal grandmother have sole parental responsibility for the child, [X] born [in] 2010.
That the child live with the paternal grandmother.
That the child spend time with the mother as follows:
(a)Until the mother leaves Australia on or before 30 April 2013:
(i)From 10.00 am Tuesday until 10.00 am Friday each week; and
(ii)As otherwise by agreement with the paternal grandmother.
(b)Whilst the mother is living in Bali:
(i)In Bali by agreement with the paternal grandmother;
(ii)In Australia by agreement with the paternal grandmother for at least five hours every second day for the duration of the mother’s visit to Australia, or as otherwise agreed.
(c)In the event the mother returns to Australia to live:
(i)By agreement with the paternal grandmother and the mother have liberty to apply.
Notwithstanding Order 4(a) upon the mother’s departure date being confirmed by supplying the paternal grandmother with a copy of the mother’s flight itinerary the paternal grandmother and the mother shall ensure that the child is in the mother’s care for a 48 hour period immediately preceding her departure from Australia but not including the day of her departure.
That the child spend time with the father by agreement with the paternal grandmother, with such time to be supervised by the paternal grandmother.
That the paternal grandmother and the father encourage and foster the child’s relationship with the mother.
That the paternal grandmother will encourage and facilitate the child having Skype contact with the mother on at least three occasions per week.
That the paternal grandmother inform the mother as soon as practicable if the child suffers any serious illness or injury whilst in her care and provide the mother with…

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

AGLC: SALWAY & HACKLEY & ANOR [2013] FMCAfam 328
Case: [2013] FMCAfam 328
Decision Date: 10 April 2013

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Salway & Hackley & Anor involved a contentious parenting dispute. The primary issue was whether a child, [X], should remain in Australia with his paternal grandmother or return to Bali with his mother. The child had been primarily cared for by his grandmother since infancy, but recent court orders aimed at transitioning his care to his mother had not been successful. The mother's visa issues and the deteriorating relationship between her and the grandmother added urgency to the decision. The Court had to determine whether keeping the child with his grandmother, despite the mother's wishes, was in the child's best interest.

The Court found that [X] had a secure attachment to his grandmother and that this relationship was critical for his development. The evidence from a family consultant highlighted the risks of an insecure attachment if the child were to be separated from his grandmother. The mother's efforts to build a relationship with [X] had not resulted in a secure attachment, and the child's distress when separated from his grandmother underscored the importance of maintaining this primary attachment. Given these findings, the Court concluded that it was in [X]'s best interests to remain with his grandmother in Australia.

The Court ordered that [X] should live with his paternal grandmother, with visitation rights granted to his mother and father. The orders also included provisions for maintaining contact between [X] and his mother, as well as measures to support [X]'s cultural and social development. These orders aimed to balance the child's immediate needs with the potential for future transitions as he grew older and his relationships developed.

Orders