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CAHAN & KAFKA

CAHAN & KAFKA

Case [2019] FCCA 2421 30 August 2019

Injunction

Procedural Fairness

Family Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CAHAN & KAFKA

[2019] FCCA 2421

Catchwords:
FAMILY LAW – Parenting – proposed interstate relocation – Mother’s desire to relocate – strong bond between Father and son – Father significantly involved in child’s life – diminished relationship by virtue of practical realities – resulting reduction in time spent – best interests of the child – relocation refused.

Legislation:

Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 65D, 65DAA

Cases cited:

A v A: Relocation Approach [2000] FamCA 751
AMS and AIF (1999) 199 CLR 160
Farleigh & Wills and Ors [2011] FamCA 431
Godfrey & Saunders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Heath & Hemming (No 2) [2011] FamCA 749
Mazorski & Allbright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR and GR [2010] HCA 4
Taylor & Barker [2007] FamCA 1246
U v U [2002] 211 CLR 238

Applicant:

MS CAHAN

Respondent:

MR KAFKA

File Number:

MLC 10683 of 2016

Judgment of:

Judge Carter

Hearing dates:

11, 12 & 13 June 2019

Date of Last Submission:

13 June 2019

Delivered at:

Melbourne

Delivered on:

30 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Ms Ben-Simon

Solicitors for the Respondent:

Frid & Associates

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born … 2015 (“the child”).
The child shall live with the Mother.
In 2019 and 2020, the child shall spend time and communicate with the Father as follows:-
(a)during school term, in a two-week cycle as follows:-
(i)in week one:-
A.from 4.00pm until 7.00pm on Tuesday; and
B.from 4.00pm Wednesday until 7.00pm Thursday; and
(ii)in week two:-
A.from 4.00pm until 7.00pm on Tuesday, Wednesday and Thursday; and
B.from 4.00pm on Friday until 9.00am (or the commencement of kindergarten) on Monday;
(b)during the long summer holidays in 2019/2020:-
(i)from 4.00pm on 20 December 2019 until 10.00am on Christmas Day; and
(ii)from 5.00pm on 31 December 2019 until 7.00pm on 15 January 2020; and
(c)at such further or other times as may be agreed between the parties
Commencing in 2020, the child spend time with the parties during the June/July school term holidays as follows:-
(a)in 2020 and each alternate year thereafter, the child spend the entirety of the holiday period with the Mother; and
(b)in 2021 and each alternate year thereafter, the child spend the entirety of the holiday period with the Father.
Commencing in 2019, the child shall spend one half of each of the March/April and September/October school term holiday periods with each of his parents, at times to be agreed and failing agreement:-
(a)in 2019 and each alternate year thereafter:-
(i)from the conclusion of school on the last day of school term until 7.00pm on the middle day of the school term holidays with the Father; and
(ii)from 7.00pm on the middle day of the school term…

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 CAHAN & KAFKA

Details

AGLC: Cahan and Kafka [2019] FCCA 2421
Case: [2019] FCCA 2421
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the matter of *Cahan & Kafka*, Judge Carter considered a dispute between a mother and father concerning parenting arrangements for their child, X. The mother sought to relocate interstate with X, a proposal opposed by the father who maintained a strong bond with the child and had been significantly involved in his life, although practical realities had diminished the frequency of their contact.

The central legal issue before the court was whether the proposed interstate relocation of the child was in X's best interests, a determination requiring the court to weigh the mother's desire to relocate against the father's significant involvement and the impact of such a move on the child's relationship with him. The court was tasked with assessing the practical implications of the proposed relocation on the existing parental relationship and ensuring that any parenting orders made would serve the paramount consideration of the child's welfare.

Judge Carter ultimately refused the mother's application for relocation. The court's reasoning focused on the best interests of the child, acknowledging the father's substantial role in X's life and the potential negative consequences of a significant geographical separation. The court found that maintaining the child's strong bond with his father was a crucial factor in its decision.

Consequently, the court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility for X. The child was ordered to live with the mother, but detailed provisions were made for X to spend substantial time and communicate with the father, both during school terms and holidays, with specific arrangements for special occasions and future holiday periods. The orders also included provisions for interstate and overseas travel, communication, and mutual advisement on the child's welfare, along with an injunction restraining denigration of either parent in the child's presence.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties have equal shared parental responsibility for the child X born … 2015 (“the child”).

The child shall live with the Mother.

In 2019 and 2020, the child shall spend time and communicate with the Father as follows:-

(a) during school term, in a two-week cycle as follows:-

(i) in week one:-

A. from 4.00pm until 7.00pm on Tuesday; and

B. from 4.00pm Wednesday until 7.00pm Thursday; and

(ii) in week two:-

A. from 4.00pm until 7.00pm on Tuesday, Wednesday and Thursday; and

B. from 4.00pm on Friday until 9.00am (or the commencement of kindergarten) on Monday;

(b) during the long summer holidays in 2019/2020:-

(i) from 4.00pm on 20 December 2019 until 10.00am on Christmas Day; and

(ii) from 5.00pm on 31 December 2019 until 7.00pm on 15 January 2020; and

Commencing in 2020, the child spend time with the parties during the June/July school term holidays as follows:-

(a) in 2020 and each alternate year thereafter, the child spend the entirety of the holiday period with the Mother; and

(b) in 2021 and each alternate year thereafter, the child spend the entirety of the holiday period with the Father.

Commencing in 2019, the child shall spend one half of each of the March/April and September/October school term holiday periods with each of his parents, at times to be agreed and failing agreement:-

(a) in 2019 and each alternate year thereafter:-

(i) from the conclusion of school on the last day of school term until 7.00pm on the middle day of the school term holidays with the Father; and

(ii) from 7.00pm on the middle day of the school term holidays until the commencement of the new school term with the Mother; and

(b) in 2020 and each alternate year thereafter:-

(i) from the conclusion of school on the last day of school term until 7.00pm on the middle day of the school term holidays with the Mother; and

(ii) from 7.00pm on the middle day of the school term holidays until the commencement of the new school term with the Father.

Commencing in 2020, the child shall spend one half of the long summer holidays with each of his parents at times to be agreed.

Commencing in 2021, the child shall spend time and communicate with the Father during school terms in a two week cycle as follows:-

(a) in week one:-

(i) from 4.00pm until 7.00pm on Tuesday; and

(ii) from 4.00pm on Thursday until 9.00am (or the commencement of school) on Monday (or 7.00pm if Monday is a non-school day);

(b) in week two:-

(i) from 4.00pm until 7.00pm on Tuesday and;

(ii) from 4.00pm Thursday until 9.00am (or the commencement of school) on Friday (or 7.00pm if Friday is a non-school day); and

Notwithstanding any other order, for the purposes of special occasions, X shall spend time with his parents as follows:-

(a) with his Father from 10.00am on 24 December until 10.00am on Christmas Day;

(b) with his Mother from 10.00am on Christmas Day until 6.00pm on Boxing Day;

(c) with his Mother on the Mother’s Day weekend from 5.00pm on the Saturday preceding Mother’s Day until the commencement of kindergarten/school (or 9.00am) on the following Monday;

(d) with his Father on the Father’s Day weekend from 5.00pm on the Saturday preceding Father’s Day until the commencement of kindergarten/school (or 9.00am) on the following Monday; and

(e) as may otherwise be agreed between the parties from time to time.

10.

Each parent shall facilitate the child communicating with the other parent via telephone, FaceTime, Skype or such other like electronic means at any time as reasonably requested by the child.

11.

Each parent be permitted to travel interstate with the child at any time he is in their care or at other times as may be agreed PROVIDED ALWAYS THAT the travelling parent provide notice to the other parent upon booking and provide the other parent with details of an address and contact information for the child whilst interstate.

12.

Each parent be permitted to travel overseas with the child at any time he is in their care or at other times as may be agreed PROVIDED ALWAYS THAT the travelling parent provides 21 days’ written notice to the other parent of the intended travel and provides the other parent with copies of the child’s return tickets, itinerary, details of an address and contact information for the child whilst overseas.

13.

Each of the parties:-

(a) advise and keep the other advised at all times of the current residential address and telephone number of the child and advise the other of any change thereto within seven (7) days of such change;

(b) advise the other immediately in the event that the child suffers any serious illness or injury;

(c) authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the other in respect of the child’s medical condition/s and/or requirements; and

(d) authorise all schools or childcare centres at which the child may attend, from time to time, to:-

(i) provide to the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;

(ii) communicate with the other, either by telephone, in writing or by personal attendance, in respect to the child’s progress at schools; and

(iii) attend all school function to which parents are normally invited;

subject to any policy in relation thereto.

14.

Each of the parties and their servants and/or agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child and from permitting any other person so to do.

15.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

16.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

Cahan and Kafka [2019] FCCA 2421

Cases Citing This Decision

No citing cases yet.

Cases Cited

Grella & Jamieson [2017] FamCAFC 21
Citation 1 (Para 4)

…ng orders as it thinks proper. As to what is “ proper ”, and how the Court’s discretion is to be exercised, the Full Court in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:- A discretionary judgement concerning parenting orders necessarily involves, because of the focus upon the future, significant elemen…
Heath & Hemming (No 2) [2011] FamCA 749
Citation 2 (Para 2)

…As observed by Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at 101:- In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do no…
Farleigh and Wills and Ors [2011] FamCA 431
Citation 3 (Para 3)

…the principles as set out in the legislation are intended as a guide to the determination of the Court. As Cronin J said in Farleigh & Wills and Ors [2011] FamCA 431, “ They are the aspirations of the community for children in Australia ”. X is entitled to have the benefit of both of his parents meaningfully invol…
MRR v GR [2010] HCA 4
Citation 4 (Para 7)

…the child’s best interests and whether an order for that is reasonably practicable. This is the approach set out by the High Court in MRR and GR [2010] HCA 4.…
Taylor & Barker [2007] FamCA 1246
Citation 5 (Para 1)

…(1999) 199 CLR 160 (“ AMS ”), A v A: Relocation Approach [2000] FamCA 751, U v U [2002] 211 CLR 238 (“ U v U ”) and Taylor & Barker [2007] FamCA 1246.…
Mazorski & Albright [2007] FamCA 520
Citation 6 (Para 6)

…does not provide a definition of the word “ meaningful ”, they noted with approval the view of Brown J in her decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as “ significant ”, “ important ”, “ of consequence ” and “ valuable to the child ”. Her…
Godfrey & Sanders [2007] FamCA 102
Citation 7 (Para 7)

…In the case of Godfrey & Sanders [2007] FamCA 102, Kay J noted that:- Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. This position was subsequently endorsed by the Full Court in McCall .…
U v U [2002] HCA 36
Citation 8 (Para 1)

…ters are set out in cases including AMS and AIF (1999) 199 CLR 160 (“ AMS ”), A v A: Relocation Approach [2000] FamCA 751, U v U [2002] 211 CLR 238 (“ U v U ”) and Taylor & Barker [2007] FamCA 1246.…
A v A: Relocation approach [2000] FamCA 751
Citation 9 (Para 1)

…living arrangements. These matters are set out in cases including AMS and AIF (1999) 199 CLR 160 (“ AMS ”), A v A: Relocation Approach [2000] FamCA 751, U v U [2002] 211 CLR 238 (“ U v U ”) and Taylor & Barker [2007] FamCA 1246.…
AMS v AIF [1999] HCA 26
Citation 10 (Para 1)

…e issue, but consider it as just one of the proposals for X’s living arrangements. These matters are set out in cases including AMS and AIF (1999) 199 CLR 160 (“ AMS ”), A v A: Relocation Approach [2000] FamCA 751, U v U [2002] 211 CLR 238 (“ U v U ”) and Taylor & Barker [2007] FamCA 1246.…
McCall & Clark [2009] FAMCAFC 92
Citation 11 (Para 6)

…In the case of McCall & Clark [2009] FamCAFC 92 (“ McCall ”), the Full Court of the Family Court noted that whilst the Act does not provide a definition of the word “ meaningful ”, they noted with approval the view of Brown J in her decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term…

Legislation Cited

Family Law Act 1975 (Cth) 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60C...
9 mentions (from Para 16)
Evidence Act 1995 (Cth) 140
2 mentions (from Para 7)