Appeal allowed against family court order that mother return children to original city where mother, children and father lived prior to separation

02/11/2015

The Family Court considered the principles required in making an Interim Order in the case of Eaby &Speelman [2015] FamCAFC 104 on 27 May 2015.

The Mother moved with her two children from Town G where they had lived with the Father of the children in a town about 9 hours away (Town N).  The Mother’s parents also lived in Town N.  The move was without the consent of the Father. 

The Father made an Application to have the children return to Town G. 

The Judge at the original Interim Hearing ordered the return of the children to Town G and that the children live with the Mother if she returned to Town G and that the children spend time with the Father.

On appeal the Full Family Court of Australia held that the Trial Judge did not properly consider the matter and did not give adequate reasons for the Trial Judge’s Decision.  The Full Family Court ordered that there be a rehearing of the Interim Application, namely, on an interim basis whether the Mother can move with the children to Town N.

The Family Court confirmed that the Family Court in deciding matters must consider Section 61DA of the Family Law Act 1975 which provides for the presumption of equal shared parenting responsibility.  Section 65DAA of the Family Law Act requires the Court to consider a child spending equal time or substantial and significant time with each parent in certain circumstances. 

The presumption does not apply if there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of the child) has engaged in abuse of the child or family violence.

In an Interim Application such as in this case the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.

As the Family Law Act provides for a presumption it can be rebutted or set aside by the appropriate evidence that satisfies the Family Court that it would not be in the interests of the child for the child’s parents to have equal shared parental responsibility for the child.

In the case of Eaby the Trial Judge failed to give consideration of Section 61DA of the Family Law Act and failed to give reasons for the Trial Judge’s decision not to address the issue.

In those circumstances the appeal was allowed and the case was sent back to the Family Court for the matter to be heard on this basis. 

Further the majority of the Appeal Court Judges explained that in the case of SS & AH [2010] FamCAFC 13 the proper approach in dealing with contentious matters of fact in an interim hearing is:

  • A Judge may sometimes weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected; and
  • When dealing with the welfare of children it is not always feasible to ignore an assertion due to focus on its accuracy.

In Interim Applications the Court does not have the benefit of fully contested hearing including cross examination of witnesses to decide such issues.

It is important in an Application such as the Application for the return of children or relocation of children that experienced family law lawyers are engaged and the Family Court should be provided with submissions as to the law and how the law impacts upon the facts of the matter.  The Family Court should be asked to provide reasons.  This sensible approach will assist a Trial Judge in not making the same mistake that the Trial Judge made in the Eaby case.

Additionally, urgent application is required to be taken when children are removed from the area where they lived prior to the breakdown of the relationship.

Please contact Richard Watson to discuss this very important matter if you find yourself in the unfortunate position where the children have been removed without your consent or if you wish to relocate your children from where they lived prior to separation.

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