Semper & Cross - [2022] FedCFamC2F 1591

Federal Circuit and Family Court of Australia
(DIVISION 2)
Semper & Cross [2022] FedCFamC2F 1591

File number(s): ADC 4348 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – Parenting – interim hearing – unilateral relocation by the mother to City B approximately 388 km from the city in which the parties formally lived – three year old child – consideration of the best interests of the child – equal shared parental responsibility – where the mother has alleged family violence perpetrated by the father – where the parties have not yet participated in mediation – interim orders for time spending – interim orders returning the child to Adelaide pending Trial

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL

Cases cited:
AMS & AIF (1999) FLC 92-852

B & B (1997) FLC 92-755

Campbell & Spalding [1998] FamCA 66

Goode v Goode (2006) FLC 93-286

Morgan & Miles [2007] FamCA 1230

Division: Division 2 Family Law

Number of paragraphs: 77

Date of hearing: 10 November 2022

Place: Adelaide

Counsel for the Applicant: Mr Dillon

Solicitor for the Applicant: AM Legal

Counsel for the Respondent: Ms Bailey

Solicitor for the Respondent: Legal Services Commission of South Australia

Solicitor for the Independent Children's Lawyer: Mr Charman
ORDERS

ADC 4348 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SEMPER

Applicant

AND:
MS CROSS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE DICKSON

DATE OF ORDER:

11 NOVEMBER 2022

UPON NOTING THAT the proceedings were conducted by telephone and in person
THE COURT ORDERS BY CONSENT THAT:
1.Until further order the parties have equal shared parental responsibility for the child X born in 2019 (“the said child”).
2.The parties and legal representative (and the Independent Children’s Lawyer) attend a Family Dispute Conference at the Legal Services Commission of South Australia on 6 February 2023 at 1:30pm and the parties are directed to attend at the said Family Dispute Conference in person.
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
3.The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a)a copy of the said Order; and
(b)the current contact details of the parties (including current postal and telephone details).

4.The parties, or their solicitors, forward to the Legal Services Commission of South Australia Family Dispute Resolution Unit, at least twenty-eight (28) days prior to the date of the Conference, a copy of all documents filed with the Court on their behalf.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
5.That no later than 9 December 2022 the mother do return the said child…

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 Semper & Cross

Details

AGLC: Semper & Cross [2022] FedCFamC2F 1591
Case: [2022] FedCFamC2F 1591
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia (FCFCA) involved a dispute between the parents of a three-year-old child regarding interim parenting arrangements. The father, Mr Semper, filed an application seeking orders for the child to return to reside in Adelaide while the mother, Ms Cross, opposed this and sought to remain residing with the child in City B, approximately 388 km from Adelaide. The court had to decide whether the child should reside with the mother in City B or return to Adelaide pending a final hearing. The legal issues included whether the mother's unilateral relocation was in the child's best interests, and whether equal shared parental responsibility should be ordered. The court considered the statutory criteria in section 60CC of the Family Law Act 1975 (Cth) and held that the child should return to reside in Adelaide pending a final hearing. The court found that the mother's decision to relocate without the father's consent was rash and that a relocation at this stage would likely have a deleterious effect on the case when it reaches trial. The court ordered that the child return to reside in Adelaide, that the parties have equal shared parental responsibility, and set out interim time-sharing arrangements and other orders to protect the child's welfare.

Orders