SULLY & REILLY - [2020] FamCAFC 225

FAMILY COURT OF AUSTRALIA

SULLY & REILLY

[2020] FamCAFC 225

FAMILY LAW – APPEAL – PARENTING – Appeal against orders allowing the child to have supervised time with the appellant father, for the respondent mother to have sole parental responsibility for the child and for the mother and the child to relocate from Sydney to Adelaide – Relocation – Best interests of the child – Assessment of risk – Challenges to the primary judge’s exercise of discretion – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Where the decision made by the primary judge was not unreasonable or plainly unjust – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 94(2A)

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

APPELLANT:

Mr Sully

RESPONDENT:

Ms Reilly

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5651

2013

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

7 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

7 September 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 August 2019

LOWER COURT MNC:

[2019] FamCA 605

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson (direct brief)

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC

SOLICITOR FOR THE RESPONDENT:

Phoenix Legal Consultancy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders made on 7 September 2020

The appeal against the orders of 28 August 2019 is dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sully & Reilly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 96 of 2019
File Number: SYC 5651 of 2013

Mr Sully

Appellant

And

Ms Reilly

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ainslie-Wallace J

This appeal concerns the parenting arrangements for B who was born in 2008 (“the child”). Ms Reilly (“the mother”) wished to move to Adelaide from Sydney and sought orders that she have sole parental responsibility for…

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 SULLY & REILLY

Details

AGLC: SULLY & REILLY [2020] FamCAFC 225
Case: [2020] FamCAFC 225
Decision Date: 7 September 2020

CaseChat Overview and Summary

The case of Sully & Reilly involved a dispute concerning the relocation of a child to Adelaide and the arrangements for the child to spend time with the father. The matter was heard and determined by the Family Court of Australia. The primary issue before the court was whether it was in the best interests of the child to relocate to Adelaide and, if so, what arrangements should be made for the child to spend time with the father. The mother argued that the child should not relocate to Adelaide and should not have any contact with the father, while the father argued that the child should relocate to Adelaide and spend more time with him.

The court was required to consider the evidence and submissions from both parties and determine what orders would be in the best interests of the child. The court recognised that relocating the child to Adelaide would cause a significant change for the child, but also that not allowing the child to have any contact with the father would be a further risk as it may push the child to engage in risk-taking behaviour. The court found that it was in the best interests of the child to relocate to Adelaide and to continue to spend time with the father on a supervised basis. The court considered that the arrangements for the child to spend time with the father in Adelaide were reasonable and appropriate.

The court rejected the father's argument that more time should be spent with the father or that the child should not relocate to Adelaide. The court found that there were significant risks to the child in Sydney from the father and that relocating the child to Adelaide would mitigate those risks. The court also rejected the father's argument that undue weight was placed on his lack of funds in making the orders for time with the child in Adelaide. The court found that the father had not made any submissions in relation to what orders would be appropriate if the child was permitted to relocate to Adelaide and had not provided any evidence of a source of funds to travel to Adelaide more frequently.

The court made orders that the child relocate to Adelaide and that she spend time with the father on a supervised basis. The court also made orders for the payment of child support by the father. The father was given leave to appeal the decision of the primary judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was argued:55.By permitting [the child] to relocate to Adelaide, the [t]rial [j]udge has avoided one risk but created another which he clearly recognises. He acknowledges that such relocation would cause a “huge” change for [the child]. He was not persuaded by the [m]other’s view that it would be in [the child’s] best interests to have no contact with the [f]ather, as for [the chid] not to have any prospect of spending time with her father would be a further risk because it would push her to run away or engage in other risk-taking behaviour. (Reasons for Judgment paragraph 193)56.It is submitted that the extremely limited time which [the child] is permitted to spend with the [f]ather would not reduce the risk which the [trial judge] has recognised in paragraph 74 above and by inference, he recognises this risk as continuing to exist notwithstanding the time [the child] is to spend with the [f]ather in accordance with his orders. It is submitted that he could have further reduced this risk by permitting [the child] to spend more time with the [f]ather or by not permitting [the child’s] relocation to Adelaide.(As per the original) The matters referred to in paragraph 55 of the Summary of Argument are the reasons the primary judge concluded that it would be in the child’s best interests that she continue to spend time with the father on a supervised basis. The balance of the submission asserts, in the absence of any evidence of the fact before the primary judge, that more time spent with the father would ameliorate the risk or if the child remained in Sydney the risk of distress from moving to Adelaide would be obviated. The second aspect, if indeed that is what is meant, is with respect, a statement of the obvious. However, as his Honour’s reasons reveal, there were significant risks to the child in Sydney from the father. Perhaps, while the risk inherent in a change of location would be obviated, other risks would obtain. Finally in Ground 9 is the assertion that the primary judge placed undue weight on the father’s lack of funds in making the orders for time with the child in Adelaide. The argument devolved to a discussion of orders the primary judge could have made had he thought it appropriate. It is to be understood that the father’s case before the primary judge was that the child should return to Sydney and he did not contemplate a relocation to Adelaide and made no submissions in relation to what orders would be appropriate to make in that event. Equally too, there was no evidence, it seems, of the father having a source of funds by which he could travel to Adelaide more frequently and the evidence was that he was in arrears in child support. Possible arrangements for the child in Adelaide if relocation was permitted was discussed at length with the expert in the cross-examination of counsel for the Independent Children’s Lawyer. The issue having been squarely raised in the hearing before the primary judge, the father gave no evidence that any of those possible arrangements were acceptable to him and made no submission that in the event that there was a relocation, some would be more acceptable than others.

Ratio Decidendi

Legal Principle Established

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