Wince and Wince - [2018] FamCA 950

FAMILY COURT OF AUSTRALIA

WINCE & WINCE

[2018] FamCA 950

FAMILY LAW – CHILDREN – Application to support interim relocation – mother alleges father is an unacceptable risk – interim orders for children to live with mother and relocate back to B Town – children to spend unsupervised time with father – proceedings transferred to Federal Circuit Court of Australia, Rockhampton Registry.

Family Law Act 1975, s.60CC

Goode & Goode (2006) FLC 93-286
Banks & Banks FLC 93-637
Morgan & Miles [2007] FamCA 1230
Campbell & Scalding [1998] FamCA 66

APPLICANT:

Ms Wince

RESPONDENT:

Mr Wince

FILE NUMBER:

BRC

8629

2018

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

12 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Bunning

SOLICITOR FOR THE APPLICANT:

Wiltshire Family Law

COUNSEL FOR THE RESPONDENT:

Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

Orders

That the children, X born … 2013 and Y born … 2016 (collectively “the children”) live with the mother.
That upon and conditional on the payment by the father to the mother of a sum of not less than $2,000, the children shall return to live with the mother, pursuant to Order 3, to the B Town or C Town area, as the mother elects.
That the children shall return, unless otherwise agreed between the parents:
(a) within thirty (30) days of the father paying the mother at least $2,000;
(b) but not before 15 December 2018.
That the mother shall give the father written notice at least seven (7) days before she has relocated with the children, of the address of the home where the children will live and a copy of any tenancy agreement.
That upon the children returning to B Town/C Town, the children shall spend time and communicate with the father at all reasonable times as are agreed, but failing agreement:
(a) each Wednesday from 3.30 pm to 5.30 pm for both of the children;
(b) each alternate weekend during the Christmas school holiday period:
i.for X from 9.00 am to 4.00 pm on the Friday, Saturday and Sunday of that weekend; and
ii.for Y from 9.00 am to 1.00 pm on the Friday, Saturday and Sunday of that weekend.
(c)during the period commencing with Christmas Eve (24 December 2018) and extending to Boxing Day (26 December 2018), for one (1) period of four (4) hours with both children, extended to seven (7) hours for X;
(d)when the 2019 school year recommences, the period for Y to spend time with the father shall continue whilst the time X spends with the father will not include the fortnightly Friday when she is at school; and
(e)unless otherwise agreed, changeovers shall occur at the McDonalds Restaurant C Town.
That without admission by the father, when the children are in his care the father shall:
(a)not consume or be affected by illicit substances; and
(b)not consume or be affected by alcohol likely to restrict him from lawfully driving…

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 Wince and Wince

Details

AGLC: Wince and Wince [2018] FamCA 950
Case: [2018] FamCA 950
Decision Date: 16 November 2018

CaseChat Overview and Summary

In *Wince and Wince*, Baumann J of the Family Court of Australia made orders concerning the living arrangements and time spent with the children, X and Y, and the father. The dispute centred on the children's residence and the terms of their contact with the father, particularly in light of a relocation by the mother.

The court was required to determine the primary residence of the children, the conditions under which they would return to a specific geographic area, and the specific arrangements for the father to spend time with them. Further issues included the appointment of a family report writer, the allocation of costs for this report, and the transfer of proceedings to another registry.

Baumann J ordered that the children live with the mother, with a condition that upon the father paying a sum of not less than $2,000, the children would return to live with the mother in either the B Town or C Town area, as elected by the mother, within thirty days but not before 15 December 2018. The orders detailed specific times for the children to spend with the father, including mid-week contact and alternate weekend arrangements during school holidays, with specific provisions for each child. The father was also subject to conditions regarding the consumption of illicit substances and alcohol when the children were in his care. Mr D was appointed as a Court Expert to prepare a family report, with initial costs to be borne by the father, who was granted leave to seek a contribution from the mother. The proceedings were subsequently transferred to the Federal Circuit Court of Australia, C Town Registry, and adjourned.

Orders

Orders of the court

That the children, X born … 2013 and Y born … 2016 (collectively “the children”) live with the mother.

That upon and conditional on the payment by the father to the mother of a sum of not less than $2,000, the children shall return to live with the mother, pursuant to Order 3, to the B Town or C Town area, as the mother elects.

That the children shall return, unless otherwise agreed between the parents:

(a) within thirty (30) days of the father paying the mother at least $2,000;

(b) but not before 15 December 2018.

That the mother shall give the father written notice at least seven (7) days before she has relocated with the children, of the address of the home where the children will live and a copy of any tenancy agreement.

That upon the children returning to B Town/C Town, the children shall spend time and communicate with the father at all reasonable times as are agreed, but failing agreement:

(a) each Wednesday from 3.30 pm to 5.30 pm for both of the children;

(b) each alternate weekend during the Christmas school holiday period:

i. for X from 9.00 am to 4.00 pm on the Friday, Saturday and Sunday of that weekend; and

ii. for Y from 9.00 am to 1.00 pm on the Friday, Saturday and Sunday of that weekend.

(c) during the period commencing with Christmas Eve (24 December 2018) and extending to Boxing Day (26 December 2018), for one (1) period of four (4) hours with both children, extended to seven (7) hours for X;

(d) when the 2019 school year recommences, the period for Y to spend time with the father shall continue whilst the time X spends with the father will not include the fortnightly Friday when she is at school; and

(e) unless otherwise agreed, changeovers shall occur at the McDonalds Restaurant C Town.

That without admission by the father, when the children are in his care the father shall:

(a) not consume or be affected by illicit substances; and

(b) not consume or be affected by alcohol likely to restrict him from lawfully driving a motor vehicle, specifically with a blood alcohol level above .05.

That Mr D is appointed a Court Expert to prepare a family report and in that respect:

(a) the parents shall attend any interview or observation sessions nominated by Mr D; and

(b) the costs of the Court Expert shall initially be met by the father, with leave granted to the father to seek a contribution to the costs of the family report from the mother.

That pursuant to Rule 11.18 of the Family Law Rules 2004 (Cth), these proceedings be transferred to the Federal Circuit Court of Australia, C Town Registry.

That these proceedings be adjourned to a date to be advised by the C Town Registry of the Federal Circuit Court of Australia.

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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