YANCY & YANCY - [2019] FCCA 3141

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANCY & YANCY

[2019] FCCA 3141

Catchwords:
FAMILY LAW – Interim parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CA, 65D.

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant:

MR YANCY

Respondent:

MS YANCY

File Number:

PAC 3536 of 2018

Judgment of:

Judge Newbrun

Hearing date:

1 October 2019

Date of Last Submission:

1 October 2019

Delivered at:

Parramatta

Delivered on:

8 November 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Marhinin

Counsel for the Respondent:

Mr Campton

Solicitors for the Respondent:

Mr Williams

ORDERS PENDING FURTHER ORDER

That [X] born … 2016 (“Child”) live with the Mother.
That the Child spend time with the Father as follows

2.1.From the Date of these Orders for a period of 6 weeks:
2.1.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and
2.1.2.from 12:30pm until 6:30pm each alternating Saturday or Sunday.

2.2.From 6 weeks from the date of these Orders:
2.2.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day; and
2.2.2.from 9:00am until 6:00pm each alternating Saturday or Sunday.

2.3.From the date [X] is 3 years and 6 months of age on … 2020 in the following fortnightly cycle of time:
2.3.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;
2.3.2.Week 1 from 6:00pm Friday until 10:00am Saturday;
2.3.3.Week 2 from 9:00am until 6:00pm Sunday;

2.4.From the date [X] is 4 years of age on … 2020 in the following fortnightly cycle of time pending further order of the court:
2.4.1.Each Tuesday from 7:00am until 4:30pm, on condition that the Father is not working that day;
2.4.2.Week 1 from 6:00pm Friday until 10:00am Saturday; and
2.4.3.Week 2 from 9:00am Saturday until 10:00am Sunday.

That for the purposes of change over for spending time, the father collect the child from, at the commencement of time spent, and return the child to, at the conclusion of time spent, the usual place of residence of the mother.
That each party shall keep the other party informed in writing as to their current residential address including within 7 days of either party changing their current residential address.

IT IS NOTED that publication of this judgment under the pseudonym Yancy & Yancy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3536 of 2018

MR YANCY

Applicant

And

MS YANCY

Respondent

REASONS FOR JUDGMENT

Introduction

This interim hearing related to the child [X] born … 2016.

Proposals

The father’s proposals were set out in his Minute of Proposed interim orders sent to the Court after the interim hearing.
The mother sought interim parenting orders in accordance with Exhibit C.

Material relied upon

The mother relied upon the following documents:
a)Orders sought – incorporated in…

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: YANCY & YANCY [2019] FCCA 3141
Case: [2019] FCCA 3141
Decision Date: 8 November 2019

CaseChat Overview and Summary

In *Yancy & Yancy*, Newbrun J of the Family Court of Australia considered an application for interim parenting orders. The dispute concerned the arrangements for the children of the marriage, with the court tasked with determining what orders were in the best interests of the children pending a final hearing.

The central legal issue before the court was the paramount consideration of the best interests of the child, as mandated by the *Family Law Act 1975* (Cth). This required Newbrun J to assess various factors relevant to the children's welfare, including their safety, wellbeing, and the need to maintain meaningful relationships with both parents, balanced against any specific risks or concerns raised by the parties.

Newbrun J applied the principles established in parenting jurisprudence, focusing on the statutory best interests provisions. The court weighed the evidence presented by both parties regarding the children's current living arrangements, their relationships with each parent, and any allegations or concerns that might impact their safety or emotional wellbeing. The judge considered the need for stability and continuity in the children's lives while also ensuring that any interim orders facilitated the resolution of the parenting dispute. The court ultimately made interim orders that it considered best served the immediate welfare and interests of the children.

Orders