FAMILY COURT OF AUSTRALIA
| DELUCA & FARNHAM | [2019] FamCAFC 100 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge made final parenting orders following a 10 day trial – Where the appellant was ordered sole parental responsibility – Where the orders provide that the appellant must consult with the respondent on “long term welfare issues” for either child, including change of residential address – Where the definition of “long term welfare issues” is inclusive and permits expansion – Where the parties were prevented from taking the children overseas, without written consent, until the elder child attained majority – Where the appellant has close family overseas – Where the primary judge failed to give adequate reasons as to why the appellant was a flight risk – Where the primary judge ordered the respondent have telephone communication on a night not sought by either party or by the Independent Children’s Lawyer – Where there is nothing in the reasons for judgment which would explain why the primary judge made an order for Friday night telephone calls – Where error is established – Where the primary judge ordered that the respondent have discretion to dictate when makeup time is to occur should the children be unable to spend time with him pursuant to the orders – Where it is not apparent how the primary judge reached that result – Where error is established – Appeal allowed in part – Where it is appropriate to re-exercise the discretion – Appeal otherwise dismissed – Costs certificates granted to the appellant and Independent Children’s Lawyer. FAMILY LAW – APPLICATIONS IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where both parties sought to adduce further evidence – Where the appellant sought to adduce evidence of an email exchange between the parties post the primary judge’s orders – Where the appellant’s application was granted on the basis that the respondent could admit a further email which completed that chain – Where the respondent’s application was opposed by the appellant and the Independent Children’s Lawyer – Where the content of the respondent’s affidavit was not admissible – Where the respondent’s application to adduce further evidence was dismissed. |
| Family Law Act 1975 (Cth) s 60CC(3)(g), 93A(2) Federal Proceedings (Costs) Act 1981 (Cth) s 14(1)(e) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 |
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- AGLC
- DeLuca & Farnham [2019] FamCAFC 100
- Case
- [2019] FamCAFC 100
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge adequately justified certain restrictions and whether the orders were appropriate in light of the children’s welfare and the parents' circumstances. The court found that the primary judge had not adequately explained why the appellant was considered a flight risk, which was critical to the restriction on overseas travel. Additionally, the court determined that the order for Friday night telephone communication lacked sufficient justification in the reasons provided. The court also found fault with the provision that allowed the respondent to dictate when makeup time would occur if the children could not attend scheduled time with him, as there was no clear rationale provided.
The appeal was allowed in part, with specific orders being varied to remove perceived errors and to provide clearer guidelines. The court granted the appellant’s application to adduce further evidence and dismissed the respondent’s similar application. The final orders included modifications to the travel restrictions, communication arrangements, and the procedure for scheduling makeup time. Costs certificates were granted to the appellant and the Independent Children’s Lawyer, reflecting the court's view on the appropriateness of reimbursing their legal expenses.
Orders
Orders of the court
1.
The appellant’s Application in an Appeal to adduce further evidence filed on 4 March 2019 be granted, conditional upon Exhibit A also being admitted as evidence in the appeal.
2.
The respondent’s Application in an Appeal to adduce further evidence filed on 19 February 2019 be dismissed.
3.
The appeal be allowed in part.
4.
The orders made on 22 June 2018 be varied by discharging orders 14, 29, 34 and 35 and replacing them with the following orders:
14. When the children commence spending alternate weekend time with the father, the mother is to ensure, as far as is possible, that the children are available to receive a telephone call from their father on the alternate Wednesday when they will not be in his care, such calls to be made between 7.30 p.m. and 8.00 p.m. The mother is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the father’s call.
29. In the event that the children or either of them are unable to attend upon time with the father because of illness the father is to nominate a makeup time within a period of one month (not so that it runs consecutively with another time the children are to spend with him) to the mother and the mother is to cause the children to spend that time with him.
34. Each parent is at liberty to make an application for orders as follows:
(a) They be permitted to take the children outside of the Commonwealth of Australia:
(i) For the purpose of a holiday for one period of up to 5 weeks not more than once in any two-year period; or
(ii) For the purpose of an emergency involving a family member, for a period of up to 3 weeks.
(b) The names of the children be removed from the Airport Watchlist for the duration of any period of travel outside of the Commonwealth of Australia authorised by Court order and that the names be placed again on the Airport Watchlist upon the children’s return.
35. Subject to the preceding order, until 25 March 2027, the children X, (also known by the surname [DeLuca-Farnham]) born … 2009 (a female) AND/OR C (also known by the surname [DeLuca-Farnham]) (a male) born … 2013 are not to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order. Further it is ordered that the names of the said children be placed upon the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
5.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
6.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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