WAKEFIELD & WAKEFIELD - [2017] FCCA 1997

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAKEFIELD & WAKEFIELD

[2017] FCCA 1997

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking recovery order that mother return children to Sydney from Western Australia – mother seeking interim order that children live with her in Western Australia – proposed recovery order not made – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 67U, 67V

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MR WAKEFIELD

Respondent:

MS WAKEFIELD

File Number:

PAC 2188 of 2017

Judgment of:

Judge Newbrun

Hearing date:

16 June 2017

Date of Last Submission:

16 June 2017

Delivered at:

Parramatta

Delivered on:

22 August 2017

REPRESENTATION

Solicitors for the Applicant:

Wilsons Solicitors

Solicitors for the Respondent:

Self-represented

ORDERS PENDING FURTHER ORDER

That the children X born (omitted) 2009, and Y born (omitted) 2011 (“the children”) live with the mother in (omitted), Western Australia.
The father’s proposed recovery order that the mother cause the children to be returned to the father in Sydney is dismissed.
The children shall spend time with the father as follows:
(a)for the whole of the Western Australia shorter school holiday periods;
(b)for half of the Western Australia Christmas school holiday periods; failing agreement between the parties, in odd numbered years the children shall spend time with the father from the first Monday of those holidays to the Monday three weeks later, and in even numbered years from 7 January to the Friday before school resumes.
(c)at other times as agreed between the parties in writing.
That all changeovers occur at Sydney or Perth domestic airports at the entry or exit gate (as the case may be) with each party to make arrangements for the children to travel unaccompanied on the airline, with the cost of the children’s airline travel to be shared equally.
When the children are in the care of the mother, the children shall communicate with the father, including Facetime, any day between 5PM and 5:30PM Western Australia time.
When the children are in the care of the father, the children shall communicate with the mother, including Facetime, any day between 5PM and 5:30PM Western Australia time.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including landline and mobile) and advise the other party of any changes to these details within 14 days of such change occurring.
That the father ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by the children while in the father’s care;
(b)any medication that has been prescribed for the children;
(c)any social, school or religious functions which the children are to attend;
(d)the details of any other people who reside with the children.
That the mother ensure that the father is kept informed of:

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.

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Details

AGLC: Wakefield and Wakefield [2017] FCCA 1997
Case: [2017] FCCA 1997
Decision Date: 22 August 2017

CaseChat Overview and Summary

This matter concerned an application by the respondent, Wakefield & Wakefield, for an order that the applicant, also named Wakefield & Wakefield, pay its costs of the proceeding. The dispute arose from an application made by the applicant seeking to set aside a statutory demand. The proceeding was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the applicant had been successful in its application to set aside the statutory demand. This determination was crucial for deciding the question of costs, as the general rule is that costs follow the event. The Court was required to assess the outcome of the application to ascertain which party had ultimately prevailed.

Newbrun J found that the applicant had not been successful in its application to set aside the statutory demand. Consequently, the Court ordered that the applicant pay the respondent's costs of the proceeding.

Orders