NAPARUS & FRANKHAM (No.7) - [2020] FCCA 3139

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPARUS & FRANKHAM (No.7)

[2020] FCCA 3139

Catchwords:
FAMILY LAW – Parenting – relocation – parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3), 61DA

Cases cited:

MRR & GRR (2010) 240 CLR 461

Paskandy & Paskandy (1999) FLC 92-878

Taylor & Barker (2007) FLC 93-343

Champness & Hanson [2009] FamCAFC 96

McCall & Clark (2009) FLC 93-405

Applicant:

MS NAPARUS

Respondent:

MR FRANKHAM

File Number:

MLC 1462 of 2016

Judgment of:

Judge McGuire

Hearing dates:

26, 27, 28 & 29 October 2020

Date of Last Submission:

29 October 2020

Delivered at:

Melbourne

Delivered on:

26 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms A. Cranenburgh

Solicitors for the Applicant:

Elisa Rothschild

Counsel for the Respondent:

Mr N. Kanarev

Solicitors for the Respondent:

Nick Graham Legal

Counsel for the Independent Children's Lawyer:

Ms H. Bonney

Solicitors for the Independent Children's Lawyer:

Bowlen Dunstan & Associates

ORDERS

That the parties have equal shared parental responsibility for the child X born in 2015 (“X”).
That X live with the mother provided that the mother live in the City B municipality or such other place in Victoria not further than the distance between the father’s current home in Town F and City B.
That for these purposes the mother return X to live primarily in Victoria not later than 28 December 2020.
That provided, in any event, that should the mother choose not to return herself to reside in Victoria by 28 December 2020 then X live with the father and for these purposes the mother deliver X to the father in Victoria on or before 28 December 2020 at a point designated by the father and with the mother to meet X’s travel costs accordingly.
That upon X’s return to Victoria then each of the parties by themselves or their servants or agents be and are hereby restrained from removing X from the state of Victoria save and except with the express written consent of the other party or by Court order and also except for any Court ordered school holiday time that X is to spend with that parent pursuant to these orders.
That upon X being returned by the mother to Victoria and the mother also reside in Victoria then X spend time with the father as follows:
(a)An initial period of seven (7) days immediately upon X’s return to Victoria;
(b)Thereafter each second weekend between Friday evening at 5.00p.m. and Sunday evening at 5.00 p.m. but extending to Monday evening at 5.00 p.m. on the event of such time occurring on a long weekend;
(c)For one half of each Victorian gazetted school term holidays as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday evening at 5.00p.m. until the second Saturday at 12.00 noon;
(d)For one half of each Victorian gazetted summer school holidays commencing 2021/2022 being for the first half of such holidays in 2021/2022 and in each alternate…

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 (No.7)

Details

AGLC: NAPARUS & FRANKHAM (No.7) [2020] FCCA 3139
Case: [2020] FCCA 3139
Decision Date: 26 November 2020

CaseChat Overview and Summary

This matter concerned parenting orders for a child, X, born in 2015. The dispute involved the mother's potential relocation and the arrangements for X's residence and time with each parent. The case was heard by Judge McGuire.

The court was required to determine the primary residence of X, considering the mother's proposed relocation. It also needed to establish the terms of shared parental responsibility, the specific time X would spend with each parent, and the geographical limitations on X's residence. Further issues included orders regarding travel costs for changeovers, parental communication with X, and specific prohibitions and requirements for each parent concerning X's well-being and discipline.

Judge McGuire made orders for equal shared parental responsibility. X was to live with the mother, provided she resided within the City B municipality or within a specified distance in Victoria from the father's home. The mother was ordered to return X to Victoria by a specific date, with a condition that if she did not return herself, X would live with the father. The court also imposed restraints on removing X from Victoria without consent or court order, except for agreed school holiday time. Detailed provisions were made for X's time with the father, including specific periods during weekends, school holidays, and summer holidays, with provisions for shared travel costs. If X lived with the father, specific time and communication arrangements were ordered for X with the mother, including her responsibility for airline costs. Additional orders addressed X's name, restraints on X being left alone with a specific individual, prohibitions on physical discipline, and requirements for both parents to remain compliant with their prescribed medications and medical consultations.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the child X born in 2015 (“X”).

That X live with the mother provided that the mother live in the City B municipality or such other place in Victoria not further than the distance between the father’s current home in Town F and City B.

That for these purposes the mother return X to live primarily in Victoria not later than 28 December 2020.

That provided, in any event, that should the mother choose not to return herself to reside in Victoria by 28 December 2020 then X live with the father and for these purposes the mother deliver X to the father in Victoria on or before 28 December 2020 at a point designated by the father and with the mother to meet X’s travel costs accordingly.

That upon X’s return to Victoria then each of the parties by themselves or their servants or agents be and are hereby restrained from removing X from the state of Victoria save and except with the express written consent of the other party or by Court order and also except for any Court ordered school holiday time that X is to spend with that parent pursuant to these orders.

That upon X being returned by the mother to Victoria and the mother also reside in Victoria then X spend time with the father as follows:

(a) An initial period of seven (7) days immediately upon X’s return to Victoria;

(b) Thereafter each second weekend between Friday evening at 5.00p.m. and Sunday evening at 5.00 p.m. but extending to Monday evening at 5.00 p.m. on the event of such time occurring on a long weekend;

(c) For one half of each Victorian gazetted school term holidays as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday evening at 5.00p.m. until the second Saturday at 12.00 noon;

(d) For one half of each Victorian gazetted summer school holidays commencing 2021/2022 being for the first half of such holidays in 2021/2022 and in each alternate year thereafter and for the second half of such holidays in 2022/2023 and in each alternate year thereafter;

(e) That all weekend time for X with her father be suspended during any school holiday;

(f) Such other times or variations of the above as agreed between the parents from time to time; and

(g) That for the purposes of X spending time with father then the parents share equally in the cost and effort of transit for X between the parents in meeting at some point near half way between their respective homes as agreed between the parents but failing agreement then as designated by the father or, if the mother does not have use of a motor vehicle, then the mother is to reimburse the father for one half of the fuel costs of him doing all of the travelling to effect changeovers.

That provided that should X be living with the father pursuant to order no. (4) hereof then X spend time and communicate with the mother as follows:

(a) In Perth for one half of each gazetted Victorian term school holidays as agreed between the parties but failing agreement then for the first half of term school holidays being from the first Friday until (as close as possible) to 12.00 noon on the second Saturday;

(b) For the first half of each Victorian gazetted summer school holidays in each year being for the first half of such holidays in 2021/2022 and in each alternate year thereafter and for the second half of such holidays in 2022/2023 and in each alternate year thereafter;

(d) That the mother be responsible for the airline costs for X for the purposes of this order.

That each of the parents do all such things and sign all such documents required for X to forthwith be known socially and formally as X.

That the father be restrained from leaving X alone in the presence of his foster brother Mr G.

10.

That each of the parties be restrained from physically disciplining X or allowing any other person to do so.

11.

That the mother remain compliant with her prescribed medication.

12.

That the father remain compliant with his prescribed medication and continue regular consultations with his medical practitioners.

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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