Van Housen & Analka (No 2) - [2017] FamCAFC 252

FAMILY COURT OF AUSTRALIA

VAN HOUSEN & ANALKA (NO. 2)

[2017] FamCAFC 252

FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the mother’s application for relocation and made orders as to the time the child would spend with the father – Whether her Honour erred in her approach to the competing proposals – Where her Honour did not fail to evaluate the competing proposals – Where neither party suggested that orders for substantial and significant time in Australia were not reasonably practicable – Whether her Honour erred by making an order that overnight time commence before the child turned three when neither party sought such an order – Where this order was stayed pending resolution of the appeal and had no effect – Where her Honour’s order was supported by the evidence – No appealable error established.

FAMILY LAW – APPEAL – PARENTING – Where the primary judge’s reasons stated that the orders would allow the mother to travel with the child overseas – Where no specific order was made – Where the father conceded the failure to make an order was a slip – Where the parties agreed on the order the Full Court should make – Order for overseas travel made by consent.

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that it would not be appropriate to make an order for property settlement – Where there were assets and liabilities in dispute between the parties – Where the primary judge failed to determine the dispute as to bank accounts in the father’s name before determining whether an order should be made – Appealable error established – Appeal allowed in part.

FAMILY LAW – COSTS – Where the appeal was allowed in part – Where the general principle that each party bear his or her own costs is appropriate – No order as to costs.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117

AMS v AIF (1999) 199 CLR 160
SCVG & KLD (2014) FLC 93-582

APPELLANT:

Ms Van Housen

RESPONDENT:

Mr Analka

FILE NUMBER:

SYC

5100

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

22 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge and Carew JJ

HEARING DATE:

31 October 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 June 2017

LOWER COURT MNC:

[2017] FamCA 388

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney SC

SOLICITOR FOR THE APPELLANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Ms Beck

SOLICITOR FOR THE RESPONDENT:

Cominos Family Lawyers

Orders

The appeal be allowed in part.
Order 14 made by Cleary J on 2 June 2017 be set aside and the property proceedings be remitted for rehearing by a judge of the Family Court of Australia other than Cleary J.

By consent it is ordered

Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) the mother shall be allowed to travel overseas with the child B, born … 2014, subject…

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 Van Housen & Analka (No 2)

Details

AGLC: Van Housen & Analka (No 2) [2017] FamCAFC 252
Case: [2017] FamCAFC 252
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the case of Van Housen & Analka (No 2), the parties were involved in a dispute concerning parenting arrangements and property settlement. The mother sought to relocate with the child and appealed the primary judge’s dismissal of her application, while the father contested the mother’s relocation proposal and appealed aspects of the primary judge’s orders. The appeal was heard by the Family Court of Australia. The court was required to decide whether the primary judge erred in her approach to the competing parenting proposals, whether she failed to evaluate the proposals adequately, and if there was an error in making an order for overnight time before the child turned three. Additionally, the court needed to determine if there was an appealable error concerning the property settlement and whether any costs should be awarded.

The court found that the primary judge did not err in her evaluation of the competing proposals and that neither party suggested substantial and significant time in Australia was not reasonably practicable. The court held that the order for overnight time commencing before the child turned three was made in error, but it had been stayed pending the resolution of the appeal and thus had no effect. The court concluded that the primary judge’s order was supported by the evidence, and no appealable error was established in the parenting arrangements. However, the court did find an appealable error in the property settlement, as the primary judge had failed to determine the dispute regarding bank accounts before deciding not to make an order. This part of the appeal was allowed, and the property proceedings were remitted for rehearing by a different judge.

The court also addressed the issue of travel overseas with the child, finding that the primary judge’s reasons implied permission for such travel, but no specific order was made. The father conceded that the failure to make an order was a slip. The parties agreed that the Full Court should make an order allowing the mother to travel overseas with the child, subject to certain conditions. The appeal was allowed in part concerning the property settlement, and the general principle of each party bearing their own costs was deemed appropriate. No order as to costs was made.

Orders

Orders of the court

The appeal be allowed in part.

Order 14 made by Cleary J on 2 June 2017 be set aside and the property proceedings be remitted for rehearing by a judge of the Family Court of Australia other than Cleary J.

By consent it is ordered

Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) the mother shall be allowed to travel overseas with the child B, born … 2014, subject to providing written notice to the other party no less than 14 days in advance of the departure date and notifying the other party of the address and telephone number/s of the place/s where the child will be staying during school holidays and for the purposes of such travel:

(a) The father’s time with the child pursuant to the orders made by Cleary J on 2 June 2017 shall be suspended during the mother’s travel;

(b) The mother shall provide to the father make up time within two months of the date of her return.

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

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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