NAPARUS & FRANKHAM - [2018] FamCAFC 190

FAMILY COURT OF AUSTRALIA

NAPARUS & FRANKHAM

[2018] FamCAFC 190

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appeal cannot be heard and determined prior to the final hearing set for October 2018 – Where the mother has not complied with the interim orders made for the father to spend time with the child and it appears that she has no intention of complying with those orders – Where the father has not filed a Notice of Contravention and there is now no time to do so given the listing of the final hearing – Where Counsel for the Independent Children’s Lawyer urges dismissal of the appeal given its lack of utility – Where the appeal should be dismissed for lack of utility – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Napars

RESPONDENT:

Mr Frankham

INDEPENDENT CHILDREN’S LAWYER:

Sonia Dosanjh

FILE NUMBER:

MLC

1462

2016

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

21 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

21 September 2018

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

30 April 2018

LOWER COURT MNC:

[2018] FCCA 1384

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr E. Taghdir

SOLICITOR FOR THE RESPONDENT:

Nick Graham Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Lovering

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Hartleys Lawyers

Order

The Notice of Appeal filed on 28 May 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naparus & Frankham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: MLC 1462 of 2016
File Number: SOA 34 of 2018

Ms Naparus

Appellant

And

Mr Frankham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is the Notice of Appeal filed by Ms Naparus (“the mother”) on 28 May 2018, appealing orders made by Judge Mercuri on 30 April 2018.
The mother appears without legal representation, Mr Frankham (“the father”) appears with counsel, Mr Taghdir, and the Independent Children’s Lawyer appears through counsel, Mr Lovering.
The orders appealed against are orders addressing interim parenting matters, and provide specifically for the one child of the relationship to spend time and communicate with the father. The orders further provide for the matter to be adjourned to 15 October 2018 for final hearing with a time estimate of two days. I am told today though that that final hearing has been rescheduled to 22 October 2018,…

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 & FRANKHAM

Details

AGLC: NAPARUS & FRANKHAM [2018] FamCAFC 190
Case: [2018] FamCAFC 190
Decision Date: 21 September 2018

CaseChat Overview and Summary

Naparus and Frankham involved a family law dispute between parents over interim parenting arrangements. The father appealed an order made by the Family Court of Australia, seeking a review of the interim parenting arrangements for his child. The mother did not comply with the interim orders, and there was no prospect of her doing so in the future. The father did not file a Notice of Contravention, and Counsel for the Independent Children's Lawyer urged the dismissal of the appeal on the basis that it lacked utility.

The central legal issue before the court was whether the appeal should be dismissed due to its lack of utility, given the mother's non-compliance with the interim orders and the lack of a Notice of Contravention. The court considered the utility of the appeal and whether it was appropriate to proceed with it, given the circumstances. The court found that the appeal had no practical benefit and was unlikely to result in any change to the interim orders. The court was also concerned about the impact of the appeal on the child, given that the final hearing was scheduled for October 2018.

Given the circumstances, the court dismissed the appeal as lacking utility. The court found that the appeal had no practical benefit and was unlikely to result in any change to the interim orders. The court also noted that there was no Notice of Contravention filed by the father, and Counsel for the Independent Children's Lawyer had urged the dismissal of the appeal. The court considered the impact of the appeal on the child and concluded that it was not in the child's best interests to proceed with the appeal. The appeal was therefore dismissed.

Orders