TRITTON & RYAN - [2019] FamCA 929

FAMILY COURT OF AUSTRALIA

TRITTON & RYAN

[2019] FamCA 929

FAMILY LAW – CHILDREN – With whom a child should live and spend time – Where the mother seeks the child live with her in the EE Region NSW, that she have sole parental responsibility, and that he spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the father – Where the father seeks that the child live with him in Town B NSW, equal shared parental responsibility, and the child spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the mother – Where the mother alleges that the father has perpetrated family violence against her including making threats to kill the child, that he raped and strangled her, and that he sexually abused the child – Where despite her allegations the mother supports the child spending substantial unsupervised time with the father and could provide no adequate explanation to support her position – Where the father denies, save for one occasion, perpetrating family violence against the mother or abusing the child at all – Where there are many inconsistences in the mother’s evidence and a significant body of evidence contradicting her evidence – Where the Court finds that, save for one occasion, the father has not perpetrated family violence and is not an unacceptable risk to the child – Where the mother has repeatedly interfered with the child’s relationship with his father – Where the father has demonstrated consistent commitment to the child and supports the child’s relationship with the mother – Where the mother concedes she cannot communicate with the father such that an order for equal shared parental responsibility is not appropriate – Where the father will have sole parental responsibility, with an obligation to consult, the child will live with him and spend alternate weekends (one in the EE Region and one in the FF Region) and half school holidays with the mother.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Colgan & Colgan [2014] FamCA 828
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69
Mahoney & Houston [2018] FamCA 71
N and S and the Separate Representative (1996) FLC 92-655
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588

APPLICANT:

Mr Tritton

RESPONDENT:

Ms Ryan

INDEPENDENT CHILDREN’S LAWYER:

Ms Ross

FILE NUMBER:

LEC

420

2016

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

23 - 25 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms C. Smith

SOLICITOR FOR THE APPLICANT:

Trenches McKenzie Cox

COUNSEL FOR THE RESPONDENT:

Ms L. Barnes

SOLICITOR FOR THE RESPONDENT:

Everyday Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Order

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 TRITTON & RYAN

Details

AGLC: TRITTON & RYAN [2019] FamCA 929
Case: [2019] FamCA 929
Decision Date: 5 December 2019

CaseChat Overview and Summary

The parties to this proceeding were Tritton & Ryan, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order for possession of certain premises. The matter came before Carew J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the applicants were entitled to an order for possession of the premises. This required the Court to consider the nature of the applicants' interest in the property and the basis upon which they sought possession.

Carew J determined that the applicants had established their right to possession. The reasoning involved an assessment of the legal title and the circumstances under which possession was sought. The Court applied principles of property law to conclude that the applicants' claim was well-founded.

The Court made orders granting possession of the premises to the applicants.

Orders