Moran and Karnadi - [2011] FamCA 626

FAMILY COURT OF AUSTRALIA

MORAN & KARNADI

[2011] FamCA 626

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Father died – child live with mother in European Country 1 or aunt in Australia
FAMILY LAW - LEGISLATION – Family Law Act 1975 (Cth) – Best interests of a child – Definition of “parent” – Section 60CC – Application of primary and additional considerations to a non-parent

Family Law Act 1975 (Cth): s 60CC(2)(a), s 60CC(3)(c), s 60CC(3)(e), s 60CC(3)(m), s 60CC(4), s 60H, s 61C, s 61DA

Donnell & Dovey (2010) FLC 93-428
Leo & Hanson [2010] FamCA 321

APPLICANT:

Ms Moran

RESPONDENT:

Ms Karnadi

FILE NUMBER:

CAC

701

2011

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

28 & 29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A Tonkin

SOLICITOR FOR THE APPLICANT:

Ms B Crompton, Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Drysdale

SOLICITOR FOR THE RESPONDENT:

Ms R Murray, HopgoodGanim Lawyers

Orders

Ms Moran will have sole parental responsibility for C, born on … November 2000.
Notwithstanding Order 1, Ms Moran will inform Ms Karnadi (the mother) about:
a.   All serious medical issues relating to C;
b.   The names of C’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom C may be attending;
c.   Details about C’s schooling including information about his progress;
d.   Any major events in C’s life including important visits either by him, or to him, and about his activities.
e.   This information may be conveyed by email or by letter from time to time as it may be appropriate to do so and Ms Moran will ensure that the information is conveyed as soon as practicable after the happening of the events referred to.
Ms Moran will authorise and direct the following to provide information to the mother upon request about C.
a. C’s school, his school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);
b. C’s doctors, dentists, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time to time.
Ms Moran will consult and discuss with C’s mother major decisions affecting C’s wellbeing.
C will live with Ms Moran.
C will spend time with his mother as follows:
a.For the ACT June/July school holiday period in European Country 1 or at a location nominated by his mother.
b.For half of the ACT Christmas school holiday period in European Country 1 or at a location nominated by his mother being for the first half in odd numbered years and for the second half in even numbered years;
c.The mother be at liberty to spend time in Australia with C on not more than two occasions each year for periods up to 14 days upon the mother’s giving Ms Moran not less than…

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 Moran and Karnadi

Details

AGLC: Moran and Karnadi [2011] FamCA 626
Case: [2011] FamCA 626
Decision Date: 29 June 2011

CaseChat Overview and Summary

This matter concerned a dispute between Ms Moran and Ms Karnadi regarding the parenting arrangements for their child, C. The case was heard by Faulks DCJ.

The court was required to determine issues relating to parental responsibility, the child's living arrangements, and the nature and extent of contact between the child and each parent. Specifically, the court had to decide who would have sole parental responsibility, how information about the child's wellbeing, schooling, and medical care would be shared, and the specific arrangements for the child spending time with each parent, including travel responsibilities and communication methods.

Faulks DCJ made orders that Ms Moran would have sole parental responsibility for C, and that C would live with Ms Moran. The court also detailed specific obligations for Ms Moran to inform Ms Karnadi about C's medical issues, practitioners, schooling, and major life events, and to authorise the disclosure of information from C's school and medical providers to Ms Karnadi. Furthermore, Ms Moran was ordered to consult with Ms Karnadi on major decisions affecting C's wellbeing. The orders also established a schedule for C to spend time with Ms Karnadi, including during school holidays and specific periods in Australia, and outlined communication protocols, including telephone and Skype contact, and email communication for C. The court also included provisions to prevent disparaging remarks about either parent in the child's presence and annexed a fact sheet detailing the obligations and consequences of contravening the orders.

Orders

Orders of the court

Ms Moran will have sole parental responsibility for C, born on … November 2000.

Notwithstanding Order 1, Ms Moran will inform Ms Karnadi (the mother) about:

a. All serious medical issues relating to C;

b. The names of C’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom C may be attending;

c. Details about C’s schooling including information about his progress;

d. Any major events in C’s life including important visits either by him, or to him, and about his activities.

e. This information may be conveyed by email or by letter from time to time as it may be appropriate to do so and Ms Moran will ensure that the information is conveyed as soon as practicable after the happening of the events referred to.

Ms Moran will authorise and direct the following to provide information to the mother upon request about C.

a. C’s school, his school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);

b. C’s doctors, dentists, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time to time.

Ms Moran will consult and discuss with C’s mother major decisions affecting C’s wellbeing.

C will live with Ms Moran.

C will spend time with his mother as follows:

a. For the ACT June/July school holiday period in European Country 1 or at a location nominated by his mother.

b.For half of the ACT Christmas school holiday period in European Country 1 or at a location nominated by his mother being for the first half in odd numbered years and for the second half in even numbered years;

c. The mother be at liberty to spend time in Australia with C on not more than two occasions each year for periods up to 14 days upon the mother’s giving Ms Moran not less than 21 days notice in writing and with such time not to include school holidays without the consent of Ms Moran.

d.At other times as agreed.

In respect to Orders 6a. C’s mother shall be responsible for C’s travel costs and for Orders 6b. Ms Moran shall be responsible for C’s travel costs.

C shall have telephone or Skype time with the party he is not spending time with from 7pm to 8pm each Sunday and between 4pm and 5pm each Wednesday (Canberra time) and at other times if C expresses a wish to do so.

In respect to Order 9 herein:

a. The parties shall facilitate the telephone or Skype time in privacy and free from distractions;

b.The parties shall keep each other informed of their respective contact details including mobile telephone, other telephone number and e-mail address and will advise the other party of any change to those details within 48 hours.

10.

C may communicate with either party via e-mail if he wishes to do so.

11.

Neither Ms Moran nor the mother will say unkind or unpleasant things about the other or the other’s family in the presence of C or do or say anything which would cause C to be concerned that he could not (or should not) express his views freely about the time he may spend with his mother and her (and C’s) family in European Country 1 or with Ms Moran and her (and C’s) family in Australia.

12.

Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

13.

The matter be removed from the Pending Cases Inventory.

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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