Braun and Umi and Anor - [2018] FamCA 884

FAMILY COURT OF AUSTRALIA

BRAUN & UMI & ANOR

[2018] FamCA 884

FAMILY LAW – CHILDREN – what time the child should spend with the paternal grandmother – whether the child should be permitted to travel overseas – orders made for child to spend time with the paternal grandmother and to travel overseas with the mother – orders made in the best interests of the child

Family Law Act 1975 (Cth) ss. 60B, 60CC, 61DA

Goode & Goode (2006) FLC 93-286
Withers & Russell & Anor (2016) 55 Fam LR 447
Mosman & Taylor Mosman [2018] FamCA 842

APPLICANT:

Ms Braun

FIRST RESPONDENT:

Ms Umi

SECOND RESPONDENT:

Mr Diabelek

FILE NUMBER:

MLC

987

2010

DATE DELIVERED:

2 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Baumann J

HEARING DATE:

25 October 2015

REPRESENTATION

THE APPLICANT APPEARED IN PERSON:

THE FIRST RESPONDENT APPEARED IN PERSON:

NO APPEARANCE BY THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr M Weston

Perry Weston Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Wiener

Orders

That all previous Orders are discharged.
That the mother, MS UMI have sole parental responsibility for the child, X born ... 2008 (“the child”).
That the child live with the mother.

Child’s time with paternal grandmother

That the child shall spend time and communicate with the paternal grandmother, MS BRAUN at all reasonable times as may be agreed between the mother and the paternal grandmother, but at least as follows:
(a)On four (4) supervised occasions a year for up to three (3) hours during Victorian gazetted school holidays on the basis that:
(i)one (1) occasion occurs in January 2019 and yearly thereafter;
(ii)one (1) occasion occurs in the end of term one (1) school holidays each year;
(iii)one (1) occasion occurs in the end of term two (2) school holiday each year; and
(iv)one (1) occasion occurs in the end of term three (3) school holidays each year.
(b)The mother shall nominate the dates for the contact visits in writing on not less than sixty (60) days’ notice to the paternal grandmother, with the notice to include particulars about:
(i)the venue for the visit;
(ii)the time of commencement and conclusion; and
(iii)the supervisor, if known.
(c)All supervision is to be undertaken by a suitably qualified, independent professional supervisor nominated by the mother from a commercial organisation that offers services in proximity to the mother’s area of residence;
(d)The costs of intake interviews for the mother and paternal grandmother charged by the supervising agency shall be paid by the paternal grandmother;
(e)The costs of supervision for each contact visit shall be paid for by the paternal grandmother;
(f)During visits under this Order, the paternal grandmother is restrained from discussing with or in the presence of the child any events involving the mother and any member of the paternal family (including these proceedings) and is restrained from making to or in the presence of the child any hurtful or denigrating remarks about the mother, her lifestyle, family or personality;
(g)The paternal…

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.

Keep reading for free

Create a free CaseChat account to read Braun and Umi and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 884
Decision Date: 2 November 2018

CaseChat Overview and Summary

This case concerned an application before Baumann J in the Federal Circuit Court of Australia, involving Ms Braun (the paternal grandmother) and Ms Umi (the mother) regarding their child, X. The dispute centred on the arrangements for the child's time with the paternal grandmother and the mother's ability to travel internationally with the child.

The court was required to determine the extent and nature of the child's contact with the paternal grandmother, including the conditions and supervision arrangements for such contact. Additionally, the court had to consider the mother's application for permission to obtain a passport for the child and to travel internationally with the child, specifically to Country B, without the father's consent.

Baumann J ordered that the mother, Ms Umi, have sole parental responsibility for the child and that the child live with her. The court established a framework for supervised time between the child and the paternal grandmother, Ms Braun, to occur on four occasions annually during school holidays, with specific notice and venue requirements. The paternal grandmother was to bear the costs of supervision and was restrained from discussing certain matters or making denigrating remarks about the mother in the child's presence. The court also permitted the mother to obtain and renew the child's passport and to remove the child from Australia for international travel, including to Country B, without the father's consent. The Independent Children's Lawyer was to be discharged upon the first supervised visit occurring.

Orders

Orders of the court

That all previous Orders are discharged.

That the mother, MS UMI have sole parental responsibility for the child, X born ... 2008 (“the child”).

That the child live with the mother.

Child’s time with paternal grandmother

That the child shall spend time and communicate with the paternal grandmother, MS BRAUN at all reasonable times as may be agreed between the mother and the paternal grandmother, but at least as follows:

(a) On four (4) supervised occasions a year for up to three (3) hours during Victorian gazetted school holidays on the basis that:

(i) one (1) occasion occurs in January 2019 and yearly thereafter;

(ii) one (1) occasion occurs in the end of term one (1) school holidays each year;

(iii) one (1) occasion occurs in the end of term two (2) school holiday each year; and

(iv) one (1) occasion occurs in the end of term three (3) school holidays each year.

(b) The mother shall nominate the dates for the contact visits in writing on not less than sixty (60) days’ notice to the paternal grandmother, with the notice to include particulars about:

(i) the venue for the visit;

(ii) the time of commencement and conclusion; and

(iii) the supervisor, if known.

(c) All supervision is to be undertaken by a suitably qualified, independent professional supervisor nominated by the mother from a commercial organisation that offers services in proximity to the mother’s area of residence;

(d) The costs of intake interviews for the mother and paternal grandmother charged by the supervising agency shall be paid by the paternal grandmother;

(e) The costs of supervision for each contact visit shall be paid for by the paternal grandmother;

(f) During visits under this Order, the paternal grandmother is restrained from discussing with or in the presence of the child any events involving the mother and any member of the paternal family (including these proceedings) and is restrained from making to or in the presence of the child any hurtful or denigrating remarks about the mother, her lifestyle, family or personality;

(g) The paternal grandmother may provide the child with an age appropriate gift or card at each visit;

(h) If the supervisor, during any visit, forms the view that the child is becoming distressed, the supervisor in attendance is authorised to bring the visit to an end and make arrangements to return the child to the mother; and

(i) No other persons or members of the paternal family, including specifically the father, other than the paternal grandmother are to be present or attend the supervised visits.

That to facilitate the parties communicating with the other party, they shall provide details of any email address of their nomination to which messages may be sent.

Overseas travel and passport

That the child shall be permitted to make an application for an Australian passport.

That the mother is permitted to obtain and renew the child’s passport in furtherance of Order 6 hereof, without the consent of the child’s father, MR DIABELEK.

That the mother has leave and is otherwise permitted to remove the child from the Commonwealth of Australia for the purpose of international travel, including to and specifically Country B.

Discharge of Independent Children’s Lawyer

That the Independent Children’s Lawyer is directed to provide to the parties details of professional contact supervisors as recommended by Family Consultant Ms C and upon the first visit occurring as set out in these Orders, the Independent Children’s Lawyer shall be discharged.

10.

That all other applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.