Vickary and Winch - [2018] FCCA 8

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKARY & WINCH

[2018] FCCA 8

Catchwords:
FAMILY LAW – Application to change accommodation and school arrangements for children aged 13 & 12 – final orders made in December of 2015 – application of the rule in Rice & Asplund – application made on an interim basis – nature of interim hearing – distance involved comparatively small – is case to be considered as a relocation matter – parties have a poor and mistrustful relationship – allegations of sexual abuse previously made but not resolved – equal shared parental responsibility – which school should children attend – assessment of risk – is risk of abuse unacceptable for court to countenance – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 68LA

Cases cited:
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
CDJ v VAJ (1998) FLC 92-828
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
Eden & Eden-Proust [2011] FamCAFC 138

Applicant:

MS VICKARY

Respondent:

MR WINCH

File Number:

ADC 3695 of 2008

Judgment of:

Judge Brown

Hearing date:

8 December 2017

Date of Last Submission:

8 December 2017

Delivered at:

Adelaide

Delivered on:

12 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Harley

Solicitors for the Applicant:

Dixon Gallasch

Counsel for the Respondent:

Mrs Read

Solicitors for the Respondent:

Black & Wood Divorce Lawyers

ORDERS

IT IS ORDERED:

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the children X born (omitted) 2004 and Y born (omitted) 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned for directions, following the appointment of the Independent Children’s Lawyer on 3 April 2018 at 9.30 am.
The matter be listed for final hearing before Judge Brown on 17, 18 and 19 October 2018 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The interim application filed by the mother on 23 August 2017 as amended on 18 October 2017 by which she sought to relocate the children’s place of residence…

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 Vickary and Winch

Details

AGLC: Vickary and Winch [2018] FCCA 8
Case: [2018] FCCA 8
Decision Date: 12 January 2018

CaseChat Overview and Summary

In the matter of *Vickary and Winch*, Judge Brown considered an application concerning the welfare of two children, X and Y. The dispute involved an interim application by the mother seeking to relocate the children to a different area, which was dismissed. The court also made orders regarding the children's residence and schooling arrangements pending a final hearing.

The primary legal issues before the court were the arrangements for the children's residence and education, particularly in light of the mother's potential relocation. The court was required to determine the best interests of the children in making these interim orders and to provide a framework for their schooling based on the mother's residential election.

Judge Brown applied the principles of the *Family Law Act 1975*, specifically Section 68L, to re-appoint an Independent Children’s Lawyer to represent the children's interests. The court's reasoning led to a dismissal of the mother's interim application to relocate the children. The court then established conditional orders for the children's residence, stipulating that they would live with the mother if she remained in her current area, or with the father if she elected to move. Specific provisions were also made for the schooling of child X, depending on which parent the children would reside with. The matter was adjourned for further directions and a final hearing was scheduled.

Orders

Orders of the court

IT IS ORDERED:

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the children X born (omitted) 2004 and Y born (omitted) 2005 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Further consideration of the matter is adjourned for directions, following the appointment of the Independent Children’s Lawyer on 3 April 2018 at 9.30 am.

The matter be listed for final hearing before Judge Brown on 17, 18 and 19 October 2018 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.

The interim application filed by the mother on 23 August 2017 as amended on 18 October 2017 by which she sought to relocate the children’s place of residence to the (omitted) area is dismissed.

UNTIL FURTHER OR OTHER ORDER

In the event the mother elects to continue maintaining her place of residence in the (omitted) area of Adelaide or its (omitted) suburbs the children X born (omitted) 2004 and Y born (omitted) 2005 live with the mother and the provisions of the orders made by this Court on 15 December 2015, including the injunction pertaining to Mr A, continue.

In the event the mother elects to live in the (omitted) area, the children live with the father at his residence in (omitted) and the children spend time with the mother at such times and subject to such conditions as the parties agree from time with the injunction pertaining to Mr A to continue.

If the parties are unable to agree on an appropriate school for the child X to attend from the commencement of the school year in 2018, within fourteen days of the date of these orders, the parent with whom the children will be residing, as a consequence of the election made by the mother, following the release of the reasons for judgment, is at liberty to enrol the child at the school of his/her choice pending final hearing subject to the operation of Order (9) or Order (10) hereof, whichever is applicable.

If the children live with the mother, as a consequence of her election to remain living in (omitted) or the (omitted) suburbs of Adelaide, the school the child X is to attend must be within a 5 kilometre radius of the (omitted) Primary School.

10.

If the children live with the father, as a consequence of the mother’s election to live in (omitted), the child X is to be enrolled at the (omitted) High School.

11.

The parties are given liberty to apply at short notice in respect of any issue arising from these reasons for judgment as a consequence of the exercise or otherwise of the election provided to the mother.

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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