FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVE & LEVIS | [2017] FCCA 2647 |
| Catchwords: FAMILY LAW – Parenting – interim application – appropriate approach to application for ex parte recovery orders – approach on return date after ex parte recovery order – discharge of ex parte orders. |
| Legislation: Family Law Act 1975, ss.11F, 60CC, 65 Family Law Rules 2004, rr.5.12, 5.13 |
| Cases cited: Scarle & Ringwood and Anor [2017] FamCAFC 57 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS CAVE |
| Respondent: | MR LEVIS |
| File Number: | MLC 9117 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 9 October 2017 |
| Date of Last Submission: | 9 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Lovering |
| Solicitors for the Applicant: | Ballarat Lawyers |
| Counsel for the Respondent: | Mr Pavone |
| Solicitors for the Respondent: | Nevett Ford |
ORDERS
Order 4 of the Orders made by the Magistrates’ Court at Ballarat on 30 August 2017 be varied to injunct both parties from taking or sending or attempting to take or send the children X born (omitted) 2011 and Y born (omitted) 2014 from the Commonwealth of Australia.
The children live with the Respondent.
The children spend time and communicate with the Applicant as follows:
(a)By telephone/Facetime every day subject to 3(b) hereof between 5:00pm and 5:30pm (Queensland time) with the Applicant to call the Respondent and the Respondent ensure his phone is switched on and charged.
(b)By Skype each Monday, Wednesday and Saturday between 5:00pm and 5:30pm.
(c)Should the Applicant be able to travel to Brisbane and upon giving the Respondent 48 hours written notice, she spend time with the children from 5:00pm Friday until 5:00pm Sunday.
(d)Such other times as agreed between the parties.
In the event that the matter is unable to be listed before the Queensland long summer vacation in 2017/2018 then it is agreed that the children spend half of such holidays with the Applicant at such time and date as agreed.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
THE COURT DIRECTS THAT:
The matter be transferred to the BRISBANE sittings of the Federal Circuit Court on 31 October 2017 at 9:30am before Judge Jarett for mention.
AND THE COURT NOTES THAT:
A.Orders 4, 5 and 6 of the Orders of the Magistrates’ Court at Ballarat on 30 August 2017 remain in…
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- CAVE & LEVIS [2017] FCCA 2647
- Case
- [2017] FCCA 2647
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate approach to applications for ex parte recovery orders and the subsequent proceedings on the return date, particularly in relation to the discharge of such orders. The court also had to consider the interim parenting arrangements for the children.
The court varied an existing order to injunct both parties from taking or sending the children from Australia. It ordered that the children live with the Respondent and set out specific arrangements for the children to spend time and communicate with the Applicant, including daily telephone/Facetime contact, Skype sessions, and supervised time if the Applicant could travel to Brisbane. The court also made provision for holiday time and directed the transfer of the matter to the Brisbane sittings of the Federal Circuit Court. Existing orders from the Magistrates’ Court at Ballarat were noted to remain in full force and effect, and the court certified that it was reasonable for the parties to employ an advocate.
Orders
Orders of the court
1.
Order 4 of the Orders made by the Magistrates’ Court at Ballarat on 30 August 2017 be varied to injunct both parties from taking or sending or attempting to take or send the children X born (omitted) 2011 and Y born (omitted) 2014 from the Commonwealth of Australia.
2.
The children live with the Respondent.
3.
The children spend time and communicate with the Applicant as follows:
(a) By telephone/Facetime every day subject to 3(b) hereof between 5:00pm and 5:30pm (Queensland time) with the Applicant to call the Respondent and the Respondent ensure his phone is switched on and charged.
(b) By Skype each Monday, Wednesday and Saturday between 5:00pm and 5:30pm.
(c) Should the Applicant be able to travel to Brisbane and upon giving the Respondent 48 hours written notice, she spend time with the children from 5:00pm Friday until 5:00pm Sunday.
(d) Such other times as agreed between the parties.
4.
In the event that the matter is unable to be listed before the Queensland long summer vacation in 2017/2018 then it is agreed that the children spend half of such holidays with the Applicant at such time and date as agreed.
5.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
THE COURT DIRECTS THAT:
6.
The matter be transferred to the BRISBANE sittings of the Federal Circuit Court on 31 October 2017 at 9:30am before Judge Jarett for mention.
AND THE COURT NOTES THAT:
A. Orders 4, 5 and 6 of the Orders of the Magistrates’ Court at Ballarat on 30 August 2017 remain in full force and effect.
B. Pursuant to ss.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 Annexure A and these particulars are included in these orders.
Background
Background to the litigation
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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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