HARLE & NORCOTT (No.3) - [2020] FCCA 22

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARLE & NORCOTT (No.3)

[2020] FCCA 22

Catchwords:
FAMILY LAW – Interim parenting – high conflict case – whether interim orders need to be revisited in view of expert’s report – where Father seeks interim relocation.

Legislation:

Family Law Act 1975 (Cth), s.102NA(2)

Cases cited:

Harle & Norcott [2018] FCCA 2551
Harle & Norcott (No.2) [2019] FCCA 1676

Applicant:

MS HARLE

Respondent:

MR NORCOTT

File Number:

WOC 276 of 2018

Judgment of:

Judge Altobelli

Hearing date:

12 December 2019

Date of Last Submission:

12 December 2019

Delivered at:

Wollongong

Delivered on:

23 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Bowral Legal

The Respondent appeared via telephone.

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Campbelltown Family Law

INTERIM ORDERS

Live With

The children W born in 2007, X born in 2009, Y born in 2011 and Z born in 2013 (“the children”) live with the Mother.

Parental Responsibility

The parties have equal shared parental responsibility for the children save and except:
(a)In the event that the parties cannot reach agreement with respect to a decision effecting major long-term issues, then the Mother will have the final decision making in respect to that issue; and
(b)The Mother will advise the Father of any such decision she makes as soon as is practicable; and
(c)This Order expressly permits the Father to obtain any information about the children’s education, medical health, extracurricular activities and residential details from any service provider attended by the children.
X, Y and Z shall remain enrolled and attend Town L Public School.
W shall remain enrolled and attend Town F High School, commencing in Term 1, 2020.

If the Father Lives in Queensland

School Holidays

The children will spend time with the Father during the NSW school holiday periods as follows:
(a)Commencing in term 1, 2020 for one half of each of the school holiday periods, on a week about basis as follows:
(i)In 2020 the Father to have the first week of the school holiday period commencing the Saturday after the last day of the school term and concluding at the 7th day thereafter and each alternate week thereafter; and
(ii)At all other times the children will be with the Mother.

Changeover

For the purposes of Order 5 herein:
(a)The parents are to facilitate the children flying to Queensland to spend time with the Father, and the Mother and the Father shall equally be liable for all costs associated with the children when travelling to and from Queensland for the purposes of spending time with the Father.
(i)Where the children are required to fly to Queensland in order to spend time with their father, unless otherwise agreed in writing, the Father shall within 28 days prior to the commencement of his time with the children shall provide the Mother with a copy of the flight itinerary for the travel to and from Queensland.
(ii)Where the children are required to fly to Queensland in order to…

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 HARLE & NORCOTT (No.3)

Details

AGLC: HARLE & NORCOTT (No.3) [2020] FCCA 22
Case: [2020] FCCA 22
Decision Date: 23 January 2020

CaseChat Overview and Summary

This matter concerned an application by the Father for interim parenting orders, specifically seeking to relocate the children. The proceedings were before Altobelli J in the Family Court of Australia. The case involved a high level of conflict between the parents.

The central legal issue before the court was whether the existing interim parenting orders should be revisited and varied in light of a report provided by an expert. The Father's application for interim relocation was a key aspect of this consideration.

Altobelli J considered the expert's report and the existing interim orders. The court's reasoning focused on the best interests of the children, a paramount consideration in family law matters. The judge applied principles relating to the modification of interim orders, particularly in circumstances where new evidence, such as an expert report, suggests a change in the children's circumstances or welfare. The court weighed the competing interests of the parents and the potential impact of any relocation on the children's relationship with both parents and their overall well-being.

The court made orders regarding the interim parenting arrangements, reflecting its determination of the children's best interests in light of the expert evidence and the parents' submissions.

Orders