Searle and Mellor - [2016] FCCA 2698

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEARLE & MELLOR

[2016] FCCA 2698

Catchwords:
FAMILY LAW – Interim parenting hearing – Orders made – Mother’s stay application pending appeal – Stay of court’s interim orders made subject to a condition providing for children’s time with father to be supervised by his current partner.

Cases cited:

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106

Clemett & Clemett (1981) FLC 91-013

EJK v TSL(No 2) [2006] FamCA 806

K v B [2006] FamCA 848

Windsor & Kava [2015] FamCA 668

Applicant:

MS SEARLE

Respondent:

MR MELLOR

File Number:

PAC 1613 of 2014

Judgment of:

Judge Newbrun

Hearing date:

26 August 2016

Date of Last Submission:

12 October 2016

Delivered at:

Parramatta

Delivered on:

20 October 2016

REPRESENTATION

Solicitors for the Applicant:

Farah Lawyers, Solicitors & Barristers

Solicitors for the Respondent:

CBD Legal

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Parramatta Family Law

ORDERS

The Court’s interim orders of 17 May 2016 are stayed, pending the mother’s hearing of her appeal to the Family Court of Australia on 17 November 2016, on the condition that the children X born (omitted) 2004 and Y born (omitted) 2009 (“the children”) spend time with the father, supervised by and in the presence of his current partner Ms A, each Saturday from 2:00pm until 4:00pm, such time commencing on Saturday, 22 October 2016.
The changeover for the children’s time with the father, referred to in order 1, shall occur outside the ticket office at (omitted) Railway Station.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1613 of 2014

MS SEARLE

Applicant

And

MR MELLOR

Respondent

REASONS FOR JUDGMENT

The mother has made an application for a stay pending appeal of the Court’s interim parenting orders of 17 May 2016.
Those orders provided, inter alia, that two (2) young children of the relationship, Y aged almost 7 years, and X, aged almost 12 years, could spend unsupervised time with the father from 11:00am to 5:00pm on fortnightly Saturdays.
The mother did not comply with the Court’s orders of 17 May 2016, which led to the father filing a Contravention Application on 8 June 2016. That Contravention Application is yet to be determined by the Court.
The mother relies upon her Application in a Case filed 15 June 2016 and supporting affidavit filed on the same date. The grounds of appeal are attached to the Notice of Appeal, which was filed on 10 June 2016.
The mother filed written submissions in respect to the stay application on 4 September 2016. The father filed written submissions similarly dated 22 September 2016.

Chronology

On 23 September 2014, by consent, court orders were made providing for the children to live with the mother; the father was to submit himself to urine analysis testing; both parties shall proceed to make contact and attend the intake procedures at…

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 Searle and Mellor

Details

AGLC: Searle and Mellor [2016] FCCA 2698
Case: [2016] FCCA 2698
Decision Date: 20 October 2016

CaseChat Overview and Summary

In the matter of *Searle and Mellor*, heard before Judge Newbrun, the dispute concerned interim parenting orders. The specific details of the dispute leading to these orders are not elaborated upon in the provided text, but the outcome relates to the children's time with their father.

The court was required to determine the terms of interim parenting orders pending the mother's appeal to the Family Court of Australia. This involved considering the conditions under which the children would spend time with the father.

Judge Newbrun ordered that the interim orders of 17 May 2016 be stayed pending the mother's appeal. This stay was conditional upon the children spending time with the father each Saturday from 2:00 pm to 4:00 pm, commencing 22 October 2016. Crucially, this time was to be supervised by and in the presence of the father's current partner, Ms A. The court further specified that the changeover for this supervised time was to occur outside the ticket office at (omitted) Railway Station.

Orders

Orders of the court

The Court’s interim orders of 17 May 2016 are stayed, pending the mother’s hearing of her appeal to the Family Court of Australia on 17 November 2016, on the condition that the children X born (omitted) 2004 and Y born (omitted) 2009 (“the children”) spend time with the father, supervised by and in the presence of his current partner Ms A, each Saturday from 2:00pm until 4:00pm, such time commencing on Saturday, 22 October 2016.

The changeover for the children’s time with the father, referred to in order 1, shall occur outside the ticket office at (omitted) Railway Station.

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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