LOKARE & BAUM - [2015] FamCA 521

FAMILY COURT OF AUSTRALIA

LOKARE & BAUM

[2015] FamCA 521

FAMILY LAW – CHILDREN – Review of Registrar’s decision out of time – Where the father made every endeavour to file his review application within time – Leave granted for application to be filed out of time.

FAMILY LAW – CHILDREN – Review of Registrar’s decision – Interim parenting orders – Where the mother is the primary carer of the young child – Where the father did not provide the evidence required for the orders to be changed – Where the orders sought by the father cannot be practically implemented – Father’s review application unsuccessful.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Lokare

RESPONDENT:

Ms Baum

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

FILE NUMBER:

DNC

2013

DATE DELIVERED:

5 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

2 June 2015

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Haydon Fowler Corbett Jessop

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

IT IS ORDERED

Z Lokare, born … 2011, (“the child”) live with the mother.
The child spend time with the father as follows:
(a)       During 2015:
(i)In the Northern Territory at the following times:
A.For a period of 10 days at a time which incorporates one of the time periods in sub-paragraph B for the purposes of the child undertaking her ‘smoking ceremony’ with her L group family, subject to subparagraph (ii).
B.Subject to subparagraph 2(c), during each of the following 7 day periods from 9.00am until 5.00pm on each day, in Darwin.
i.    8 – 14 April
ii.     28 June – 4 July
iii.   25 September – 1 October
C.     Subject to subparagraph D, the child shall have 1 overnight stay with the father during the period referred to in subparagraph B(ii) and 2 overnight stays with the father during the period referred to in subparagraph B(iii) on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.
D. The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother that the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.
(ii)That for the purposes of subparagraph 2(a)(i)A:
A. The father shall provide to the mother not less than 28 days prior notice in writing to the dates, times and location for the ‘smoking ceremony’ to take place and of all other arrangements to be put in place for the ‘smoking ceremony’.
B. The mother shall be permitted to be present during the ‘smoking ceremony’.
C.…

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 LOKARE & BAUM

Details

AGLC: LOKARE & BAUM [2015] FamCA 521
Case: [2015] FamCA 521
Decision Date: 5 June 2015

CaseChat Overview and Summary

The case of Lokare & Baum concerned parenting orders for a child named Z Lokare. The dispute involved the father and mother of the child, with the court being the Federal Circuit and Family Court of Australia. The orders detailed the arrangements for the child to live with the mother and spend time with the father, including specific periods and locations for contact, as well as provisions for communication and parental conduct.

The court was required to determine the specific terms of the parenting orders, including the allocation of living arrangements, the schedule for the child to spend time with each parent, and the conditions under which such time would occur. This involved setting out detailed arrangements for contact in both the Northern Territory and Sydney, as well as provisions for communication via Skype. The court also had to consider orders relating to the parties' conduct towards each other and the child, and the child's participation in cultural events.

Rees J made orders that the child live with the mother and spend time with the father according to a detailed schedule for 2015 and 2016. These orders included specific dates and times for the child to be with the father, both during the day and for overnight stays, with conditions regarding accommodation and travel arrangements, particularly when the mother was required to accompany the child. The court also made orders restraining both parents from denigrating each other in the presence of the child and requiring them to inform each other of serious illness or accidents involving the child. Further orders mandated participation in a parenting after separation course and allowed for the child to spend time with extended family during contact periods. The court also included provisions regarding communication with extended family via Skype and referenced the Family Law Act 1975 concerning contravention of orders.

Orders

Orders of the court

IT IS ORDERED

Z Lokare, born … 2011, (“the child”) live with the mother.

The child spend time with the father as follows:

(a) During 2015:

(i) In the Northern Territory at the following times:

A. For a period of 10 days at a time which incorporates one of the time periods in sub-paragraph B for the purposes of the child undertaking her ‘smoking ceremony’ with her L group family, subject to subparagraph (ii).

B. Subject to subparagraph 2(c), during each of the following 7 day periods from 9.00am until 5.00pm on each day, in Darwin.

i. 8 – 14 April

ii. 28 June – 4 July

iii. 25 September – 1 October

C. Subject to subparagraph D, the child shall have 1 overnight stay with the father during the period referred to in subparagraph B(ii) and 2 overnight stays with the father during the period referred to in subparagraph B(iii) on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

D. The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother that the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

(ii) That for the purposes of subparagraph 2(a)(i)A:

A. The father shall provide to the mother not less than 28 days prior notice in writing to the dates, times and location for the ‘smoking ceremony’ to take place and of all other arrangements to be put in place for the ‘smoking ceremony’.

B. The mother shall be permitted to be present during the ‘smoking ceremony’.

C. The father shall book and pay for the child and the mother to

fly on a commercial airline between Sydney and Darwin and return and shall provide to the mother a copy of the booking confirmations not later than 21 days before the first flight.

D. The father shall arrange and pay for the return transport of the child and the mother from Darwin to C Community, and return, with such transport to be of a good standard of comfort and safety.

E. The father shall arrange and pay for the accommodation of the mother and the child while in Darwin in a motel or hotel, or such other accommodation as agreed to by the mother, of not less than a 3 star standard.

F. The father shall arrange and pay for the accommodation of the mother and the child at Town T, for the purposes of the child’s participation in the ‘smoking ceremony’ at C Community of a standard which is reasonably comfortable and appropriate having regard to accommodation availability.

(iii) In Sydney at the following times:

A. Subject to subparagraph B and C, during each of the following 7 day periods from 9.00am to 3.00pm each day other than on days when the child attends pre-school in which event the time will be from 8.00am to 9.00am and from 3.00pm to 6.00pm:

i. 18 – 24 May

ii. 17 – 23 August

iii. 9 – 15 November

B. Subject to subparagraph C, the child shall have 1 overnight stay with the father during the period referred to in subparagraph A(i), 2 overnight stays with the father during the period referred to in subparagraph A(ii) and 2 overnight stays with the father during the period referred to in subparagraph A(iii) on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

C. The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother that the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

(iv) By Skype communication in each week at the following times:

A. Tuesday, commencing at 8.30am Sydney time; and

B. Wednesday, commencing at 8.00am Sydney time; and

C. Friday, commencing at 8.30am Sydney time;

D. with the father to initiate the Skype call to the child’s Skype address.

(b) During 2016:

(i) In the Northern Territory at the following times:

A. Subject to subparagraph 2(c), during each of the following 7 day periods from 9.00am until 5.00pm on each day, in Darwin.

i. 10 – 16 April

ii. 3 – 9 July

iii. 25 September – 1 October

B. Subject to subparagraph C, the child shall have 2 overnight stays with the father during each of the periods referred to in subparagraph A on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

C. The father shall provide to the mother prior to the day of the overnight stay details of the accommodation at which he and the child will be staying including the address and telephone contact number and shall satisfy the mother the accommodation and sleeping arrangements are satisfactory for the comfort and safety of the child.

(ii) In Sydney at the following times:

A. Subject to subparagraphs B and C, during each of the following 7 day periods from 9.00am to 3.00pm each day other than on days when the child attends pre-school or school in which event the time will be from 8.00am to 9.00am and from 3.00pm to 6.00pm:

i. 29 February – 6 March

ii. 23 – 29 May

iii. 22 – 28 August

iv. 14 – 20 November

B. Subject to subparagraph C, the child shall have 2 overnight stays with the father during each of the periods referred to in subparagraph A (i, ii, iii, iv), on days as agreed by the parties in which event the time the child spends with the father on those days shall continue until 12.00pm on the following day and recommence at 9.00am on the day thereafter.

C. The father shall provide to the mother not less than 21 days prior notice in writing of his intention to come to Sydney to spend the time with the child, and shall provide to the mother no less than 7 days prior notice in writing the address and contact telephone number for the accommodation at which the father will be staying during the time and, if it is different, for the accommodation at which the child will be spending the overnight time with the father.

(iii) By Skype communications in each week as follows:

A. Tuesday, commencing at 8.00am Sydney time; and

B. Wednesday, commencing at 8.00am Sydney time; and

C. Friday, commencing at 8.00am Sydney time;

With the father to initiate the Skype call to the child’s Skype address.

(i) The father shall book and pay for the child and the mother to fly on a commercial airline between Sydney and Darwin return and shall provide to the mother a copy of the booking confirmation no later than 21 days before the first flight; and

(ii) The father shall book and pay for the accommodation of the mother and child while in Darwin in a motel or hotel or such other accommodation as agreed by the mother, of not less than a 3 star standard and provide to the mother a copy of the booking confirmation no later than 21 days before the flight to Darwin.

Each party keep the other party informed at all times of the current residential address and of a telephone contact number for that party.

The father be restrained from saying anything to the child, or within the hearing of the child, which indicates or infers that the mother has taken the child away from the father or is preventing the child from spending time with the father or is otherwise not supportive of the child’s relationship with the father.

Each party be restrained from denigrating the other party, or that party’s friends and/or family, in the presence or within the hearing of the child and use his or her best endeavours to ensure that no other person does so.

Each party notify the other as soon as practicable in the event the child is suffering a serious illness or having a serious accident.

Orders are made in accordance with the Minute of Order proposed by the Independent Children’s Lawyer as set out hereunder:-

7.1 The parties each enrol in and complete a Parenting after Separation Course provided by Unifam or Relationships Australia and provide the other party and the Independent Children’s Lawyer with evidence of the completion of that course.

7.2 The father is free to make arrangements for the child to spend time with members of his L group family and participate in cultural events with them during any period that the child is spending time with him in accordance with these orders.

That the child communicate with the extended L group family by Skype on one Sunday of each month between 12 noon and 2 pm Darwin time.

That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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