Naparus & Frankham (No. 3)

Case [2021] FamCAFC 150

FAMILY COURT OF AUSTRALIA

Naparus & Frankham (No. 3) [2021] FamCAFC 150

Appeal from: Naparus & Frankham (No.7) [2020] FCCA 3139
Appeal number(s): SOA 96 of 2020
File number(s): MLC 1462 of 2016
Judgment of: AUSTIN, TREE & WILLIAMS JJ
Date of judgment: 17 August 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders and dismissal of a relocation application – Apprehended bias – Where the primary judge did not err in ordering equal shared parental responsibility or considering the practicalities of orders made – Where the primary judge did not mistake the facts – Consideration of expert evidence – Weight challenges – Findings by the primary judge open on the evidence – Appeal dismissed – No order as to costs.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 65DAA, 117(1), 117(2), 117(2A)
Cases cited:

Antoun v R (2006) 224 ALR 51; [2006] HCA 2

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

MRR & GR (2010) 240 CLR 461; [2010] HCA 4

Naparus & Frankham (No. 2) [2020] FamCAFC 238

Naparus & Frankham [2020] FamCAFC 32

R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

U v U (2002) 211 CLR 238; [2002] HCA 36

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Division: Appeal Division
Number of paragraphs: 88
Date of hearing: 24 June 2021
Place: Heard in Melbourne (via video-link), delivered in Newcastle
Counsel for the Applicant: Litigant in person
Solicitor for the Respondent: Nick Graham Legal
Counsel for the Respondent: Mr Kanarev
Solicitor for the Independent Children's Lawyer: Bowlen Dunstan & Associates Pty

ORDERS

SOA 96 of 2020
MLC 1462 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS NAPARUS

Appellant
AND:

MR FRANKHAM

Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, TREE & WILLIAMS JJ

DATE OF ORDER:

17 AUGUST 2021

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed 9 February 2021 is dismissed.

2.The respondent’s application for costs is dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the…

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AGLC
Naparus & Frankham (No. 3) [2021] FamCAFC 150
Case
[2021] FamCAFC 150
Decision Date

CaseChat Overview and Summary

In this case, the mother, Ms Naparus, appealed against the final parenting orders made by the primary judge and the dismissal of her relocation application. The father, Mr Frankham, responded to the appeal. The Appeal Division of the Family Court of Australia was responsible for determining the appeal. The court had to decide whether the primary judge erred in ordering equal shared parental responsibility, considering the practicalities of the orders made, and in making findings on the evidence presented. The court also had to determine whether the mother's apprehensions of bias against the primary judge were well founded.

The Appeal Division of the Family Court of Australia found that the primary judge did not err in ordering equal shared parental responsibility or considering the practicalities of the orders made. The court also found that the primary judge did not mistake the facts and that the findings by the primary judge were open on the evidence. The court dismissed the mother's appeal and found no merit in any of the grounds of appeal. The court also dismissed the father's application for costs.

The Appeal Division of the Family Court of Australia dismissed the mother's appeal and found no merit in any of the grounds of appeal. The court also dismissed the father's application for costs. The orders made by the court were that the Amended Notice of Appeal filed 9 February 2021 is dismissed and that the respondent's application for costs is dismissed.

Orders

Orders of the court

SOA 96 of 2020

MLC 1462 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS NAPARUS

Appellant

AND:

MR FRANKHAM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, TREE & WILLIAMS JJ

DATE OF ORDER:

17 AUGUST 2021

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 9 February 2021 is dismissed.

2. The respondent’s application for costs is dismissed.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons that follow, this appeal must be dismissed.BACKGROUND The mother is 42 years of age and has lived in Australia since 1986. The father is 38 years of age and lives in Town F in regional Victoria. The parties met online in about 2009, when the mother was living in Perth and the father in Victoria. In 2013, the mother moved from Perth to live in Victoria and they commenced living together in a domestic relationship in or about March 2014. The child was born in April 2015. The parents separated in October 2015, and in December 2015 the parents entered into a parenting plan providing for the child to live primarily with the mother. In February 2016, the father commenced proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). On 6 September 2016, final orders were made by consent providing for the parents to have equal shared parental responsibility, the child to live with her mother and spend time with the father each fourth weekend on Saturday and Sunday and for the mother not to be permitted to relocate further than 80 km from City B. In January 2017, the parties recommenced living together under the one roof in City B, although there was a dispute about whether they reconciled, prior to separating again in June 2017. The mother then recommenced proceedings under Pt VII of the Act in November 2017. On 30 April 2018, interim parenting orders were made by a judge of the Federal Circuit Court which provided for the child to live with the mother and spend time with her father. In October 2018, over a four day period, a judge of the Federal Circuit Court heard the substantive parenting case. On 28 February 2019, the judge made orders (“the February 2019 orders”) and delivered reasons providing for the child to live with the mother, subject to her living in Victoria. The orders also provided for the child to spend time with the father. The mother successfully appealed the February 2019 orders and the proceedings were remitted for re-hearing (Naparus & Frankham [2020] FamCAFC 32). In 2020, the primary judge made a series of interim orders in an effort to restore the child’s interaction with the father, given she had not spent any time with him under former interim orders since August 2019 (at [61]). The fresh interim orders made by the primary judge were frustrated by a combination of the social restrictions imposed during the COVID-19 pandemic and the mother’s decision to move back to Western Australia with the child. Eventually, the primary judge issued a recovery order and ordered, on an interim basis, that the child must live with the father (at [67]). The recovery order was executed and the child returned to Victoria with the father in July 2020, closely followed by the mother (at [71]–[72]). Only two days later, the mother took the child back to Western Australia, where they remained at the time of trial (at [30] and [73]–[74]). The mother filed multiple appeals from the interim orders made in June and July 2020, but the appeals were dismissed in September 2020 (Naparus & Frankham (No.2) [2020] FamCAFC 238 (“Naparus & Frankham (No.2)”)). The dismissed appeals included an appeal from an interim decision of the primary judge made on 21 July 2020, when he refused to disqualify himself, because the mother asserted bias. The mother’s pursuit of the appeals from the interim parenting orders was futile, given the trial was listed to commence in October 2020. The proximity of the trial was also why the father did nothing to try and enforce the existing interim orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground of appeal must fail.Conclusion Having found no merit in any of the grounds of appeal, the Amended Notice of Appeal filed 9 February 2021 will be dismissed.COSTS The remaining issue for determination is whether or not there should be an order for costs. Neither the mother nor the ICL sought orders for their costs of the appeal. The father sought that the mother pay his costs of the appeal, on a party/party basis, which are calculated at $3,820.00, according to the Schedule of Costs filed by his solicitor. The mother opposed any order for costs. Counsel for the father submitted an order for costs against the mother was warranted, if the appeal were dismissed, notwithstanding that both the mother and the father were unemployed and were of modest financial means, primarily for three reasons. First, because of the manner in which the mother had conducted the appeal, secondly, because the mother would be wholly unsuccessful, and thirdly, because during the trial the mother had offered to pay for the father to fly to Perth to spend time with the child, which was inconsistent with her asserted financial situation. Counsel for the father appropriately conceded firstly, that the father did not file a Schedule of Costs until 21 June 2021, in breach of procedural orders made by the Appeal Registrar on 22 March 2021, providing for the filing of a Schedule of Costs seven days prior to the first day of the sittings in which the appeal was listed for hearing, and secondly, his breach militated against a costs order as sought. The mother submitted that an order for costs as sought by the father would impose an onerous financial burden on her and that her previous offer to pay for a flight was substantially less than the amount of costs sought. The proposal to pay for a flight was made in the context of her anticipation of obtaining housing and employment in Perth. The ICL did not seek to make any submissions about the costs claimed by the father. Section 117(1) of the Act, states, subject to the provisions of s 117(2), the general rule in proceedings in this Court, is that each party to proceedings, shall each bear his or her own costs. We are not persuaded, as between two impecunious litigants, and notwithstanding the lack of merit in the mother’s appeal, that the usual rule established by s 117, that each party should bear their own costs, is displaced. The father’s application for costs is dismissed.

Ratio Decidendi

Legal Principle Established

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