Loverdos & Bonner

Case [2022] FedCFamC1A 174

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Loverdos & Bonner [2022] FedCFamC1A 174 

Appeal from: Loverdos & Bonner [2022] FedCFamC2F 893
Appeal number(s): NAA 155 of 2022
File number(s): SYC 1387 of 2018
Judgment of: TREE J
Date of judgment: 26 October 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final orders permitting the mother to relocate with the children interstate – Whether the primary judge failed to consider s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge’s reasoning does not comply with the strictures of s 65DAA, particularly as raised by the evidence – Inadequacy of reasons – Where a consideration of whether either regime was in the children’s best interests and reasonably practicable was not apparent in the reasons – Where the primary judge’s rejection of the family report writer’s recommendations and evidence is not articulated – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to the parties.
Legislation: Family Law Act 1975 (Cth) s 65DAA
Cases cited:

Bonner & Loverdos (2021) FLC 94-026; [2021] FamCAFC 93

Heaton v Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139

House v The King (1936) 55 CLR 499; [1936] HCA 40

Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Number of paragraphs: 33
Date of hearing: 18 October 2022
Place: Cairns (via video link)
Counsel for the Appellant: Mr Kearney SC
Solicitor for the Appellant: Marsdens Law Group
Counsel for the Respondent: Mr Sansom SC
Solicitor for the Respondent: Broun Abrahams Burreket

ORDERS

NAA 155 of 2022
SYC 1387 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR LOVERDOS

Appellant
AND:

MS BONNER

Respondent

order made by:

TREE J

DATE OF ORDER:

26 october 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 2 to 11 (both inclusive) of the Orders of the Federal Circuit and Family Court of Australia (Division 2) made on 7 July 2022 be set aside.

3.The proceedings be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the two judges who have heard trials in the matter thus far.

4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

6.The Court grants…

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AGLC
Loverdos & Bonner [2022] FedCFamC1A 174
Case
[2022] FedCFamC1A 174
Decision Date

CaseChat Overview and Summary

In the matter of Loverdos & Bonner, the father appeals against the orders of the primary judge that the parties share equal parental responsibility, that the children remain in Sydney, and that the mother cannot relocate the children without the father’s consent. The mother opposed the appeal, but the appeal was allowed for reasons to be discussed. The case concerns the parenting arrangements for two children born to the parties during their relationship, which ended in early 2017. The father sought an increase in the time he spent with the children and to prevent the mother from moving to Brisbane. The mother wanted to relocate to Brisbane and sought an arrangement that would allow her to do so. The primary judge made orders for the parties to share equal parental responsibility, for the children to remain in Sydney, and for the mother to obtain the father’s consent before relocating. The court was required to decide whether the primary judge erred in his orders regarding the children’s residence and contact with the father. The court found that the primary judge had given insufficient weight to the father’s wish for the children to spend more time with him and had not adequately considered the benefits of the children spending more time with their father, particularly in light of the father’s willingness to accommodate the mother’s wish to move to Brisbane. The court also found that the primary judge had not adequately considered the benefits of the children spending more time with their father, particularly in light of the father’s willingness to accommodate the mother’s wish to move to Brisbane. The appeal was allowed, and the case was remitted to the primary judge to reconsider the orders regarding the children’s residence and contact with the father. The primary judge was directed to give due weight to the father’s wish for the children to spend more time with him and to consider the benefits of the children spending more time with their father, particularly in light of the father’s willingness to accommodate the mother’s wish to move to Brisbane.

Orders

Orders of the court

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Background

Background to the litigation

The mother opposes the appeal, however for the reasons that follow, the appeal will be allowed.background The relevant background to this matter was recited by the Full Court in the previous appeal Bonner & Loverdos (2021) FLC 94-026 as follows:8.The parties commenced cohabitation in 2013. Their first child was born in 2015 and their second child in mid-2017. The parties separated in early 2017, prior to the birth of their second child, and the father sought a DNA test to establish he was her biological father.9.The mother commenced a relationship with Mr C by February 2017.10.After separation the elder child, then aged two and a half years, spent four nights a fortnight with her father.11.The proceedings had initially been listed for final hearing in June 2019 but the matter was not reached. The mother’s treating clinical psychologist reported upon the effect on the mother of the delay in the final determination of the proceedings.12.During the time it took for the case to come on for hearing, the mother and Mr C had managed their relationship with the mother ordinarily living in Sydney and Mr C in Brisbane. Their stated intention was to cohabit in Brisbane about 12 months after the mother’s arrival in Brisbane to allow their respective children to integrate into a blended household. 13.At the hearing before the primary judge the father sought orders that would prevent the mother from removing the children from Sydney to live in Brisbane, and that the children’s time with him be progressively increased to ultimately a shared care arrangement. Both parties sought equal shared parental responsibility. 14.The mother sought orders which would enable her to relocate the children’s residence to Brisbane, and initially spend fortnightly time with their father; one weekend in four in Brisbane and one weekend in four in Sydney. The mother proposed that once the elder child commenced school, the children’s time with their father move to three weekends each school term with two weekends in Brisbane and one weekend in Sydney in terms 1 and 3 and two weekends in Sydney and one weekend in Brisbane in terms 2 and 4. Other orders were sought in relation to school holidays and special occasions. 15.The hearing took place before the primary judge on 13–15 November 2019 and written submissions were ordered, the last of which was filed on 23 December 2019. 16.The primary judge delivered oral reasons for judgment on 3 February 2020 and on that day made orders that the parties have equal shared parental responsibility (as sought by the parties); that the children live with the mother; and that the mother be prevented from relocating the residence of the children outside Sydney without the written consent of both parties. The reasons for judgment were provided in writing on 23 April 2020.17.The primary judge also made orders on a graduating basis for the children to spend increasing time with their father. Initially, the orders provide for the children to spend each alternate weekend with their father from after school/day care on Friday until before school/day care on Monday and for one afternoon each week for four hours. From the beginning of 2022 (and until the younger child commenced school), that time was to be extended to each alternate week from after school Thursday to before school Tuesday and then when the youngest child commenced school, culminated in an equal time arrangement.

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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