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NADELMAN & NADELMAN

NADELMAN & NADELMAN

Case [2020] FCCA 1363 29 May 2020

Jurisdiction

Family Law

Civil Procedure

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FEDERAL CIRCUIT COURT OF AUSTRALIA

NADELMAN & NADELMAN

[2020] FCCA 1363

Catchwords:
FAMILY LAW –Interim parenting – father seeking order that mother relocate child’s residence back to former living region – proposed order not made – best interests of child-interim parenting orders made.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654
Banks & Banks [2015] FamCAFC 36
Salah & Salah [2016] FamCAFC 100
Cimorelli & Wenlack [2020] FamCAFC 58
Saif & Saif [2020] FamCA 119

Applicant:

MR NADELMAN

Respondent:

MS NADELMAN

File Number:

PAC 5247 of 2017

Judgment of:

Judge Newbrun

Hearing dates:

9 March 2020, 8 April 2020

Date of Last Submission:

8 April 2020

Delivered at:

Parramatta

Delivered on:

29 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Blackah of Counsel

Solicitors for the Applicant:

Ms Haini - Amanda Little And Associates Pty Limited

Solicitors for the Respondent:	Mr Vincent - Kennedy & Cooke Lawyers
Solicitors for the Independent Children’s Lawyer	There was no appearance by the Independent Children’s Lawyer

ORDERS PENDING FURTHER ORDER

That the child X born in 2013 (the child) reside with the mother.
That the child be permitted to reside in the Region A region.
That the child spend supervised time with the father at a supervised contact centre (“the centre), at such times, for such periods and with such frequency as can be accommodated by the centre, but in any event no less than 2 hours each alternate weekend. Should the centre not be presently able to facilitate supervised face to face time but be able to facilitate supervised videoconferencing then the child shall be permitted to spend such videoconferencing time with the father. The centre shall be agreed upon by the parties within 7 days and failing agreement as nominated by the Independent Children’s Lawyer.
To facilitate the above time arrangements each parent shall:
(a)Forthwith and within 72 hours of the centre being agreed upon or nominated by the Independent Children’s Lawyer, contact the centre and arrange and attend the first available and offered intake appointment with the centre to enable an assessment to be made as to suitability for attendance at the centre and inclusion within the centre’s program;
(b)Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consent, instructions and authorities as may be necessary to enable completion of all intake and assessment processes by the centre;
(c)Upon acceptance by the centre for the purpose of monitored/supervised time attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service is no longer required or is withdrawn;
(d)Present the above child to the centre at such times, dates and places as are advised;
(e)Follow all and any rules or directions of the centre.
In the event that…

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

AGLC: NADELMAN & NADELMAN [2020] FCCA 1363
Case: [2020] FCCA 1363
Decision Date: 29 May 2020

CaseChat Overview and Summary

In *Nadelman & Nadelman*, the father sought interim parenting orders requiring the mother to relocate the child's residence back to their former living region. The court was asked to determine whether such an order was in the best interests of the child at this interim stage.

The central legal issue before Newbrun J was the paramount consideration of the child's best interests in the context of an interim relocation application. This required the court to weigh the competing claims of the parents and assess the potential impact of any order on the child's welfare, stability, and relationship with both parents.

Newbrun J ultimately declined to make the proposed interim order for relocation. The reasoning focused on the need to maintain the status quo and avoid disruption to the child's current living arrangements and schooling, particularly at an interim stage where a final determination had not yet been made. The court made interim parenting orders that did not involve the requested relocation, prioritising the child's immediate stability.

Orders