Espensen and Charron - [2017] FCCA 962

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESPENSEN & CHARRON

[2017] FCCA 962

Catchwords:
FAMILY LAW – Interim parenting arrangement for child aged eight years – parents separated prior to child’s birth – child has lived in Queensland with mother since birth – father lives in South Australia – father has retained child in Adelaide following holiday visit – father alleges mother has exposed child to neglect, abuse and family violence such to justify retention of child – nature of interim hearing – assessment of risk – best interests – transfer of proceedings.

Legislation:

Family Law Act 1975, ss.4(1); 60B; 60CA; 60CC; 61DA; 65DAA(5)

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Goode & Goode (2006) FLC 92-286
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Slater & Light [2013] FamCAFC 4
C & S [1998] FamCA 66
Morgan & Miles (2007) FamCA 1230
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MR ESPENSEN

Respondent:

MS CHARRON

File Number:

ADC 645 of 2017

Judgment of:

Judge Brown

Hearing date:

9 May 2017

Date of Last Submission:

9 May 2017

Delivered at:

Adelaide

Delivered on:

12 May 2017

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

T S Lawyers & Co

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Adelaide Family Lawyers

ORDERS

The child [X] born (omitted) 2009 (hereinafter referred to as “the child”) be returned to the mother in Queensland, at a location to be agreed between the parties, no later than 6:00pm on Monday 15 May 2017 with such costs to be at the expense of the father.
The matter be transferred to the Brisbane Registry of the Federal Circuit Court on a date to be advised to the parties.

Upon the undertaking of the mother that she will not bring the child into direct physical contact with either Mr A or Mr R

Until Further or Other Order it is ordered as follows:

The child live with the mother, who is authorised by this order to make arrangements for the child’s enrolment at a primary school in the vicinity of her home in (Town A) in the state of Queensland.
The father spend time with the child for one half of the forthcoming mid-year Queensland school holiday, in Adelaide, provided the father pays the costs of the child’s travel between Brisbane, Adelaide and return.
The father have liberal electronic communication, whether by telephone or via skype or other similar means, with the child, on at least two occasions per week, at a time to be agreed between the parties and failing agreement to be at 5.00 pm Australian Eastern Time on each Wednesday and Saturday.
The parties be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The parties be restrained and an injunction…

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 Espensen and Charron

Details

AGLC: Espensen and Charron [2017] FCCA 962
Case: [2017] FCCA 962
Decision Date: 12 May 2017

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Espensen, against the mother, Ms Charron, regarding the location and living arrangements of their child, [X]. The proceedings were heard by Judge Brown.

The court was required to determine the primary residence of the child and the terms of the father's and mother's time with the child, including travel arrangements and communication. Further issues included the appropriate orders to protect the child from parental conflict and to ensure the father remained informed about the child's schooling and medical welfare.

Judge Brown ordered that the child be returned to the mother in Queensland by a specified date, with the father to bear the costs of this return. The child was to live with the mother, who was authorised to enrol the child in a local primary school. The father was granted time with the child during school holidays in Adelaide, with the father responsible for the child's travel costs. Liberal electronic communication between the father and child was also ordered. Crucially, injunctions were issued restraining both parents from abusing, denigrating, or discussing the proceedings in the child's presence. The mother was also undertaking not to bring the child into direct physical contact with two named individuals until further order. The matter was to be transferred to the Brisbane Registry of the Federal Circuit Court.

Orders

Orders of the court

The child [X] born (omitted) 2009 (hereinafter referred to as “the child”) be returned to the mother in Queensland, at a location to be agreed between the parties, no later than 6:00pm on Monday 15 May 2017 with such costs to be at the expense of the father.

The matter be transferred to the Brisbane Registry of the Federal Circuit Court on a date to be advised to the parties.

Upon the undertaking of the mother that she will not bring the child into direct physical contact with either Mr A or Mr R

Until Further or Other Order it is ordered as follows:

The child live with the mother, who is authorised by this order to make arrangements for the child’s enrolment at a primary school in the vicinity of her home in (Town A) in the state of Queensland.

The father spend time with the child for one half of the forthcoming mid-year Queensland school holiday, in Adelaide, provided the father pays the costs of the child’s travel between Brisbane, Adelaide and return.

The father have liberal electronic communication, whether by telephone or via skype or other similar means, with the child, on at least two occasions per week, at a time to be agreed between the parties and failing agreement to be at 5.00 pm Australian Eastern Time on each Wednesday and Saturday.

The parties be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.

The parties be restrained and an injunction issues restraining each of them from discussing the proceedings in the presence of the child or from permitting any other person to do so.

Each party keep the other informed of his/her respective residential address and contact details including mobile telephone numbers and email addresses.

Each party inform the other of any medical emergency or accident suffered by the child as soon as is practicable after such emergency or accident has occurred and advise the other of all medical treatment received by the child and the name and address of the medical practitioner providing such treatment.

10.

The mother authorise the child’s school to provide the father with a copy of his school report when it has been prepared and authorise any medical practitioner attended by the child to provide the father with details of the consultation concerned and any treatment prescribed for the child.

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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