Markwell and Solberg and Anor (No.2) - [2020] FCCA 2462

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARKWELL & SOLBERG & ANOR (No.2)

[2020] FCCA 2462

Catchwords:
FAMILY LAW – Application for stay of parenting orders pending appeal – stay refused.

Legislation:

Family Law Rules 2004 rr.22.11(1), 22.11(3)

Applicant:

MS MARKWELL

First Respondent:

MR SOLBERG

Second Respondent:

MR RANWICK

File Number:

CAC 1533 of 2014

Judgment of:

Judge Hughes

Hearing date:

7 August 2020

Date of Last Submission:

7 August 2020

Delivered at:

Canberra

Delivered on:

3 September 2020

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr Nicholls

Solicitors for the First Respondent:

Chamberlains Law Firm

Counsel for the Second Respondent:

Ms Evans

Solicitors for the Second Respondent:

Evans Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Ridge

Solicitors for the Independent Children’s Lawyer:

Barker & Barker

ORDERS

The mother’s application for a stay of the orders of 30 June 2020 pending appeal is dismissed.
For the purpose of the orders of 30 June 2020, until the mother relocates to the Canberra district the child B shall spend time with her mother as follows:
(a)every second weekend from 5.30 pm Friday to 5.30 pm Sunday, commencing today 7 August 2020;
(b)for half school holidays in accordance with the orders dated 30 June 2020 (which provide the particulars for such time); and
(c)such additional or alternate times as agreed.
Unless otherwise agreed the handover of B shall occur at the Town F Service Centre on the G Highway at the beginning of each period and at the main carpark at Town CCC at the end of each period.
For the purpose of the orders of 30 June 2020, the time D spends with her father shall recommence on Wednesday 12 August 2020.
Whilst the mother continues to live in Town R the handover of the D shall occur at the DDD Service Station in Town R.
Each parent shall take all steps necessary to comply with Government COVID-19 safety requirements for themselves and the children.
Each parent is restrained from taking the children or either of them outside of the ACT and NSW or allowing anyone else to do so without the prior written consent of the other parent or a Court order.
In the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a)A copy of these Orders;
(b)A copy of the Orders dated 30 June 2020; and
(c)A copy of the Reasons for Judgment dated 30 June 2020.
By consent the time for compliance by the mother with order 8 of the orders dated 20 July 2020 (the filing of an initiating application in relation to property settlement) is extended to 10 August 2020.
Noting…

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

Case: [2020] FCCA 2462
Decision Date: 3 September 2020

CaseChat Overview and Summary

In *Markwell and Solberg and Anor (No.2)*, Judge Hughes of the Federal Circuit Court of Australia considered applications by the mother concerning parenting orders and a stay of those orders pending appeal. The proceedings involved disputes over the time the children would spend with each parent and related matters, including handover arrangements and geographical restrictions.

The court was required to determine whether to grant the mother's application for a stay of the parenting orders made on 30 June 2020. Additionally, the court had to make orders regarding the specific arrangements for the children's time with each parent, including handover locations and times, and to address applications for costs. The court also considered orders restraining parents from taking the children outside of the ACT and NSW without consent and obligations regarding notifications to authorities.

Judge Hughes dismissed the mother's application for a stay of the previous orders. The court then made detailed orders concerning the children's time with each parent, specifying handover arrangements and commencing dates for the father's time with one child. The court also imposed restrictions on the geographical movement of the children and outlined procedures for parents to follow if they notified authorities about potential abuse or neglect. The court also extended the time for the mother to file an application related to property settlement and set a timetable for submissions regarding costs orders sought against the mother.

Orders

Orders of the court

The mother’s application for a stay of the orders of 30 June 2020 pending appeal is dismissed.

For the purpose of the orders of 30 June 2020, until the mother relocates to the Canberra district the child B shall spend time with her mother as follows:

(a) every second weekend from 5.30 pm Friday to 5.30 pm Sunday, commencing today 7 August 2020;

(b) for half school holidays in accordance with the orders dated 30 June 2020 (which provide the particulars for such time); and

Unless otherwise agreed the handover of B shall occur at the Town F Service Centre on the G Highway at the beginning of each period and at the main carpark at Town CCC at the end of each period.

For the purpose of the orders of 30 June 2020, the time D spends with her father shall recommence on Wednesday 12 August 2020.

Whilst the mother continues to live in Town R the handover of the D shall occur at the DDD Service Station in Town R.

Each parent shall take all steps necessary to comply with Government COVID-19 safety requirements for themselves and the children.

Each parent is restrained from taking the children or either of them outside of the ACT and NSW or allowing anyone else to do so without the prior written consent of the other parent or a Court order.

In the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

(a) A copy of these Orders;

(b) A copy of the Orders dated 30 June 2020; and

By consent the time for compliance by the mother with order 8 of the orders dated 20 July 2020 (the filing of an initiating application in relation to property settlement) is extended to 10 August 2020.

10.

Noting that Mr Solberg and Mr Ranwick have applied for a costs order against the mother which the Court had insufficient time to consider today:

(a) each of Mr Solberg and Mr Ranwick shall file and serve submissions in support of the application for costs by 28 August 2020;

(b) the mother shall file and serve any submissions in reply by 11 September 2020;

11.

Otherwise all extant applications are hereby dismissed.

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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