Hollis and Zabala - [2017] FCCA 1481

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLIS & ZABALA

[2017] FCCA 1481

Catchwords:
FAMILY LAW – Parenting – interim hearing – mother seeking order that she be permitted to relocate the child’s residence to Western Australia from Sydney – proposed order made – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MS HOLLIS

Respondent:

MR ZABALA

File Number:

SYC 4307 of 2011

Judgment of:

Judge Newbrun

Hearing date:

9 June 2017

Date of Last Submission:

6 July 2017

Delivered at:

Parramatta

Delivered on:

7 July 2017

REPRESENTATION

Solicitors for the Applicant:

Voros Lawyers

Solicitors for the Respondent:

Self-represented

Solicitors for the Independent Children’s Lawyer:

Stephen Bell & Associates

ORDERS

All previous parenting orders are discharged.
That the child X born (omitted) 2011 (“the child”) live with the Applicant mother.
That the parties have equal shared parental responsibility for major decisions relating to the child.
That the mother is permitted to relocate the child’s residence to Western Australia.
That the Respondent father communicate with the child as follows:
(a)Via Skype (or similar medium such as Facebook Messenger) or telephone on 2 occasions each week on days and times suitable to the Respondent father.
(b)At any other such times as agreed between the parties from time to time.
That the child communicates with the Respondent father’s sisters, nephews and nieces via Skype (or similar medium such as Facebook Messenger) or telephone on a Wednesday at 6pm Western Australian time.
That the Respondent father spend time with the child during school holidays as follows:
(a)The child is to fly to Canberra or Sydney (at the father’s nomination) each 2 week school holiday period and spend the entirety of the time with the Respondent father, and he shall confirm with the mother at least 14 days prior to the commencement of such holidays his intention to spend such time with the child. The father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;
(b)The child is to fly to Canberra or Sydney (at the father’s nomination) and spend half of the Christmas school holiday period with the father, with the father to nominate which half of such holidays he wishes to spend with the child, and his nomination shall be given to the mother at least 14 days prior to the commencement of such holidays. The Respondent father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;
That the Applicant mother and the Respondent father shall pay in equal shares the full amount of the return airfares for the child to fly between Western Australia and Canberra or Sydney.
Should the Respondent father be unable, by reason of his employment obligations, to spend time with the child pursuant to orders (7) (a) and (7) (b) above, then he shall inform the mother, at least 14 days…

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 Hollis and Zabala

Details

AGLC: Hollis and Zabala [2017] FCCA 1481
Case: [2017] FCCA 1481
Decision Date: 7 July 2017

CaseChat Overview and Summary

In the matter of *Hollis and Zabala*, heard by Judge Newbrun, the dispute concerned parenting arrangements for a child born in 2011. The applicant mother sought orders for the child to live with her and for permission to relocate the child to Western Australia, while the respondent father sought to maintain a relationship with the child.

The court was required to determine the best interests of the child in light of the proposed relocation and to establish a parenting regime that facilitated ongoing involvement of both parents. Key issues included the child's residence, the allocation of parental responsibility for major decisions, the terms of communication and time spent between the child and the respondent father, and the financial responsibilities associated with these arrangements.

Judge Newbrun discharged all previous parenting orders and made new orders reflecting the relocation. The child was ordered to live with the applicant mother, with both parents to have equal shared parental responsibility for major decisions. The mother was permitted to relocate the child to Western Australia. The orders detailed specific communication arrangements between the father and the child, including weekly video calls and communication with the father's extended family. The father was granted significant time with the child during school holidays, with provisions for travel to Canberra or Sydney, and shared responsibility for the child's airfares. The court also included orders regarding international travel, notification of changes in contact details, and prohibitions against denigrating remarks about the other parent.

Orders

Orders of the court

All previous parenting orders are discharged.

That the child X born (omitted) 2011 (“the child”) live with the Applicant mother.

That the parties have equal shared parental responsibility for major decisions relating to the child.

That the mother is permitted to relocate the child’s residence to Western Australia.

That the Respondent father communicate with the child as follows:

(a) Via Skype (or similar medium such as Facebook Messenger) or telephone on 2 occasions each week on days and times suitable to the Respondent father.

(b) At any other such times as agreed between the parties from time to time.

That the child communicates with the Respondent father’s sisters, nephews and nieces via Skype (or similar medium such as Facebook Messenger) or telephone on a Wednesday at 6pm Western Australian time.

That the Respondent father spend time with the child during school holidays as follows:

(a) The child is to fly to Canberra or Sydney (at the father’s nomination) each 2 week school holiday period and spend the entirety of the time with the Respondent father, and he shall confirm with the mother at least 14 days prior to the commencement of such holidays his intention to spend such time with the child. The father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

(b) The child is to fly to Canberra or Sydney (at the father’s nomination) and spend half of the Christmas school holiday period with the father, with the father to nominate which half of such holidays he wishes to spend with the child, and his nomination shall be given to the mother at least 14 days prior to the commencement of such holidays. The Respondent father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

That the Applicant mother and the Respondent father shall pay in equal shares the full amount of the return airfares for the child to fly between Western Australia and Canberra or Sydney.

Should the Respondent father be unable, by reason of his employment obligations, to spend time with the child pursuant to orders (7) (a) and (7) (b) above, then he shall inform the mother, at least 14 days prior to the commencement of the child’s school holidays, of the times during the child’s school holidays that he wishes to spend time with the child, and the mother shall ensure that she makes the child available to spend such times with the father accordingly, and the otherwise applicable terms of orders (7) (a) and (b) above shall apply.

10.

That the Respondent father be permitted to take the child to (country omitted), during each school holiday period that he is entitled to spend with the child pursuant to the above orders, if he so wishes, provided that he pays half of the domestic air fares for the child to travel from Western Australia to Sydney or Canberra (and return), with the mother to pay the other half of such domestic air fares, and that he pay the full cost of air fares between Sydney or Canberra and (country omitted) (and return). The father shall provide to the mother a full itinerary and contact details to enable her to communicate with the child whilst she is away from the mother.

11.

Each party is to provide 4 weeks’ notice to the other parent about their intention to take the child overseas. Each party must provide the other parent with a full itinerary and contact details.

12.

Each party is to provide to the other party their mobile telephone number and to keep each other advised of any change in contact details.

13.

That each party immediately notify the other party if the child is seriously ill or is admitted into hospital at such times as the child is living with that parent.

14.

The parties shall not make denigrating remarks about the other parent in the presence of the child.

15.

Neither party shall make any contribution to the legal costs of the Independent Children’s Lawyer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.