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Key decisions

  • Eaby & Speelman [2015] FamCAFC 104
  • Stack & Searle [2015] FCWA 44
  • Harbrow & Boston [2015] FCCA 1414

Children – Mother wins appeal against coercive interim order requiring her to relocate – Court’s approach to interim hearings

In Eaby & Speelman [2015] FamCAFC 104 (27 May 2015) the Full Court (Thackray, Ryan & Forrest JJ) allowed the appeal by the mother who, after unilaterally relocating with children to a town 765 km away, was ordered to return at an interim hearing by Judge Turner who also ordered that the father spend time with the children. Ryan J (with whom Thackray & Forrest JJ agreed) said (at [13]-[15]) that ‘[h]er Honour did not make an order in relation to parental responsibility. Given that … the mother sought an [interim] order [as to parental responsibility] it is … surprising that no reasons are given for her Honour’s decision not to address this issue’ and that the mother ‘was entitled to have her application determined in accordance with the law’. Ryan J continued (at [17-18]): ‘ … On the basis that the parties’ evidence was in conflict and/ or lacked corroboration by an independent source, that evidence was disregarded … It is true that in Goode ([2006] FamCA 1346) … the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained … [i]n SS & AH [2010] FamCAFC 13 at [100] … [where] the majority (Boland and Thackray JJ) said: “… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”’

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