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Kasun & Rask

Kasun & Rask

Case [2023] FedCFamC2F 1012 11 August 2023

Best Interests of Child

Parenting Orders

Equal Shared Parental Responsibility

Family Violence

Child Abuse and Neglect

Relocation of Child

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kasun & Rask [2023] FedCFamC2F 1012

File number(s): PAC 4128 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 11 August 2023

Catchwords: FAMILY LAW – Parenting – Best interests of child – Orders made

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:
AMS and AIF (1999) 24 Fam LR 756

KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458

Goode v Goode [2006] FamCAFC 1346; (2007) 36 FamLR 422, (2006) FLC 93-286

Knight & Knight [2016] FamCA 1085

Malcolm & Monroe [2011] FamCAFC 16

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan v Miles [2007] FamCA 1230

MRR v GRR [2010] HCA 4

Sayer & Radcliffe and Anor [2012] FamCAFC 209

Taylor v Barker [2007] Fam CA 1236

U & U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 97

Date of hearing: 31 July 2023–2 August 2023

Place: Parramatta

Counsel for the Applicant: Mr Juhasz

Solicitor for the Applicant: A J & Associates Lawyers

Counsel for the Respondent: Mr Schonell

Solicitor for the Respondent: Marsdens Law Group

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Christina Lam & Associates
ORDERS

PAC 4128 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KASUN

Applicant

AND:
MR RASK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

11 AUGUST 2023

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting Orders and any pending parenting applications are dismissed.
2.The mother’s proposed Order that she be permitted to relocate to Brisbane with the child is dismissed.
3.The mother and father have equal shared parental responsibility for X, born in 2014 (“the child”).

Live-with arrangements
4.The child live with the mother.
5.The child spend time with the father and failing agreement as follows:
(a)During the school term, from Friday after school at 3.00 pm until Wednesday morning before school at 9.00 am.
(b)Such other times as agreed between the parties provided that such agreement is confirmed in writing by both parties.

6.During the NSW school holiday period for terms 1, 2, 3 and 4, Order 5 herein shall be suspended, and the child shall spend that holiday time with each parent for one half of all school holiday periods as agreed between the parties in writing, and failing agreement as follows:
(a)In even numbered years, with the mother for the first half and the father for the second half; and
(b)In odd numbered years, with the father for the first half and the mother for the second half.

AND for the purpose of the implementation of these Orders:
(i)the NSW school holiday period shall commence at the conclusion of school on the last day that X attends at school for the term and the NSW school holiday period shall conclude at the commencement of school on 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.

Continue reading Kasun & Rask

Details

AGLC: Kasun & Rask [2023] FedCFamC2F 1012
Case: [2023] FedCFamC2F 1012
Decision Date

CaseChat Overview and Summary

The final parenting hearing in Kasun & Rask involved a dispute between Ms Kasun and Mr Rask concerning the care, welfare, and development of their son, X. The primary issue was whether the Court should permit the mother to relocate the child's residence from Sydney to Brisbane. The case was heard over five days in July and August 2023, and judgment was delivered on 11 August 2023 by Judge Newbrun.

The Court was required to determine whether relocation would be in the best interests of the child, taking into account the statutory considerations under section 60CC of the Family Law Act 1975 (Cth). The Court also needed to assess the capacity of each parent to exercise equal shared parental responsibility and to decide on appropriate arrangements for the child's time with each parent.

The Court concluded that relocation would not be in the best interests of the child. The evidence indicated that X had a meaningful relationship with both parents and that both parents wanted the best for the child. However, the Court found that the relocation proposal would likely harm X's relationship with his father due to the mother's historical failure to facilitate time between X and his father, and her poor opinion of him. The Court also found that the mother had minimised the potential impact of the move on X. Therefore, the Court dismissed the mother's proposal to relocate to Brisbane.

The Court ordered that the parties have equal shared parental responsibility for X. The child will live with the mother, but he will spend significant time with the father. During school terms, X will spend time with the father from Friday after school until Wednesday morning before school. During school holidays, X will spend half of the holiday time with each parent, with the parent for the first half of the holidays alternating between the mother and the father each year. The Court also set out detailed provisions for special occasions, communication, changeovers, and overseas travel.

The Court's reasoning was grounded in the statutory framework and the best interests of the child, considering factors such as the child's relationship with both parents, the risk of harm from relocation, and the need for both parents to have a meaningful involvement in the child's life. The Court emphasised that the paramount consideration was the child's welfare and rights, which must be balanced against the legitimate interests and desires of the parents.

Orders