KAPLAN & ODOM - [2019] FCCA 3132

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPLAN & ODOM

[2019] FCCA 3132

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 70NBA

Cases cited:

Banks & Banks [2015] FamCAFC 36

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCA 240

Applicant:

MS KAPLAN

Respondent:

MR ODOM

File Number:

PAC 4810 of 2018

Judgment of:

Judge Newbrun

Hearing date:

30 September 2019

Date of Last Submission:

30 September 2019

Delivered at:

Parramatta

Delivered on:

16 October 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Di Marco

The Respondent appeared in person

ORDERS PENDING FURTHER ORDER

That the following interim parenting orders made by consent on 14 November 2018 in Exhibit ‘A’ be discharged:
(a)orders 4(a), 4(b), 9, 12, 13.
That the children are to spend time with the father as agreed, or failing agreement, as follows:
(a)each alternate weekend from 6:30pm Friday until the immediately following Sunday at 6pm;
(b)such time as outlined in the above order shall be suspended during school holidays and shall recommence on the first weekend after each school holidays.
The Court varies order 4(c) in Exhibit ‘A’ of the Court’s orders of 14 November 2018 so that it reads: ‘For Terms 1, 2 and 3 of the NSW gazetted school holidays, the father shall spend time with the children commencing at 6:30pm on the first Friday of the holidays until 6:30pm on the following Friday.
The Court varies order 4(d) in Exhibit ‘A’ of the Court’s orders of 14 November 2018 so that it reads: ‘For term 4 of the NSW gazetted school holidays, as agreed. Failing such agreement the father is to spend time with the children each alternate week commencing at 6:30pm on the first Friday of school holidays until 6:30pm on the following Friday’.
During the NSW school terms, the fortnightly changeover is to occur at 6:30pm Friday within the external foyer of the Suburb D Police Station. The father shall return the children to the mother on the immediately following Sunday evening at 6pm, with such changeover to occur within the internal foyer of the Suburb D Police Station.
During the NSW school holidays the changeover shall occur within the internal foyer of the Suburb D Police Station.
The Court varies order 8 in Exhibit ‘A’ of the Court’s orders of 14 November 2018 by deleting the words, ‘7pm’ and in their place inserting ‘6pm’.
The parties are to communicate with each other in relation to children’s matters by email in circumstances where there is a medical or other emergency, or other reasonable circumstances.
The Court varies order 25 in Exhibit ‘A’ of the Court’s orders of 14 November 2018 so that it reads: ‘That both parties shall keep the other advised of changes to their telephone number within 48 hours of the change.’
That each party shall keep the other advised if they intend to move further than 30km from the…

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.

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Details

AGLC: KAPLAN & ODOM [2019] FCCA 3132
Case: [2019] FCCA 3132
Decision Date: 16 October 2019

CaseChat Overview and Summary

In the matter of *Kaplan & Odom*, Newbrun J of the Family Court of Australia considered an application for interim parenting orders concerning two children. The dispute arose between the parents regarding the children's living arrangements and contact with each parent.

The central legal issue before the Court was to determine what interim parenting orders would be in the best interests of the children, having regard to the principles and considerations outlined in the *Family Law Act 1975* (Cth). This involved assessing the immediate needs of the children and the potential impact of various arrangements on their welfare.

Newbrun J applied the paramountcy principle, which mandates that the best interests of the child are the sole consideration in parenting proceedings. The Court weighed the evidence presented by both parties concerning the children's physical and psychological well-being, their relationship with each parent, and the capacity of each parent to provide care. The Court considered factors such as the children's established routines, their views (where appropriate given their age and maturity), and the need for stability and safety.

The Court made specific interim orders designed to promote the children's best interests pending a final determination of the parenting dispute.

Orders