Naparus and Frankham (No.4) - [2020] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPARUS & FRANKHAM (No.4)

[2020] FCCA 1830

Catchwords:
FAMILY LAW – Application for a Stay pending Appeal against interim orders.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Kelly & Kelly (1981) FLC 91-007

Applicant:

MS NAPARUS

Respondent:

MR FRANKHAM

File Number:

MLC 1462 of 2016

Judgment of:

Judge McGuire

Hearing date:

2 July 2020

Date of Last Submission:

2 July 2020

Delivered at:

Launceston

Delivered on:

2 July 2020

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Nick Graham Legal

Mr Dunstan

ORDERS

That the interim Orders of 30 April 2018 and the subsequent interim Orders of 9 June 2020 remain in full force and effect and the mother’s application for a Stay is dismissed.
That the father’s Application for a Recovery Order is adjourned for hearing in the Federal Circuit Court at Melbourne on Thursday 9 July 2020 at 9.30 a.m. (EST) by Global Meet telephone procedures.
That my Reasons for judgment delivered ex-tempore this day in respect of the mother’s Application for a Stay be taken out, settled and placed on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym is Naparus & Frankham (No.4) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 1462 of 2016

MS NAPARUS

Applicant

And

MR FRANKHAM

Respondent

REASONS FOR JUDGMENT

Delivered Ex-tempore

In the matter of Frankham & Naparus, I in fact have two applications before me today. I firstly have an application by the mother who today appears in person for a stay of my interim orders of 9 June 2020 pending her appeal against such orders, I also have before me but will leave in abeyance for the moment an application by the father for a recovery order in respect of the parties’ daughter, X, born in 2015. So X is five years of age.
The relevant background facts as far as I can recall and extract are these: that the parents have been engaged in parenting proceedings in respect of X in the Melbourne registry of the Federal Circuit Court now for some years; Substantially, the mother seeks an order that she be permitted to relocate with X to Western Australia with X living in her primary care; From 30 April 2018, as far as I can understand, there are the most recent of interim orders in respect of X providing for X to spend time with the father on an increasing regime towards alternate Saturdays and Sundays.
On 22 to 25 October 2018 a final hearing proceeded before her Honour Judge Mercuri whereupon her Honour made orders, inter alia for X to live with the mother with graduated alternate weekend time with the father and specifically that the mother be restrained from relocating the child to Western Australia. The mother appealed her Honour’s decision and on 18 February 2020 their Honours…

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 Naparus and Frankham (No.4)

Details

AGLC: Naparus and Frankham (No.4) [2020] FCCA 1830
Case: [2020] FCCA 1830
Decision Date: 2 July 2020

CaseChat Overview and Summary

In the matter of *Naparus and Frankham (No.4)*, Judge McGuire of the Federal Circuit Court of Australia considered an application by the mother for a stay of existing interim orders, alongside an application by the father for a recovery order. The dispute concerned the welfare and location of a child.

The primary legal issue before the Court was whether the mother's application for a stay of the existing interim orders should be granted. This required the Court to assess the merits of the mother's arguments for suspending the operation of those orders pending further determination.

Judge McGuire dismissed the mother's application for a stay, finding that the existing interim orders should remain in full force and effect. The father's application for a recovery order was adjourned for a future hearing in the Federal Circuit Court at Melbourne. The Court ordered that its reasons for judgment regarding the mother's stay application be settled and placed on the court file.

Orders

Orders of the court

That the interim Orders of 30 April 2018 and the subsequent interim Orders of 9 June 2020 remain in full force and effect and the mother’s application for a Stay is dismissed.

That the father’s Application for a Recovery Order is adjourned for hearing in the Federal Circuit Court at Melbourne on Thursday 9 July 2020 at 9.30 a.m. (EST) by Global Meet telephone procedures.

That my Reasons for judgment delivered ex-tempore this day in respect of the mother’s Application for a Stay be taken out, settled and placed on the Court file.

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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