Nappert and Pagel - [2020] FCCA 1238

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPPERT & PAGEL

[2020] FCCA 1238

Catchwords:
FAMILY LAW – Parenting – interim application – where the mother moved from Brisbane to Sydney with the child post separation – where the father remained living in Brisbane – where the parties had planned to relocate to Sydney before separation – where the parties had agreed in writing, post separation that they would both relocate to Sydney with the child – where the father subsequently decided that he did not wish to relocate to Sydney and sought an order that the child return to Brisbane – where both parents were originally from Sydney – where the parents had lived in Sydney and Brisbane during the course of their relationship – cross applications – best interests – reasonable practicability – interim parenting order – short form reasons provided pursuant to section 69ZL of the Family Law Act 1975 (Cth).

Legislation:

Family Law Act 1975, ss.60, 60CC, 61DA, 65DAA, 69ZL

Cases cited:

Hall & Hall (1979) FLC 90-713

MRR v GR (2010) 240 CLR 46

Edgar & Strofield (2016) FLC 93-711

Parks & Farmer [2012] FamCAFC 12
Browne v Keith (2015) 55 Fam LR 208
Goode v Goode (2006) 206 FLR 212
Godfrey v Sanders (2007) 208 FLR 287
Sigley & Evor (2011) 44 FamLR 439
Klein & Klein (2010) FamCAFC 150

Applicant:

MR NAPPERT

Respondent:

MS PAGEL

File Number:

BRC 1340 of 2020

Judgment of:

Judge Howard

Hearing date:

20 April 2020

Date of Last Submission:

20 April 2020

Delivered at:

Brisbane

Delivered on:

19 May 2020

REPRESENTATION

Counsel for the Applicant:

Dr Sayers

Solicitors for the Applicant:

Damien Greer Lawyers

Counsel for the Respondent:

Mr Drysdale

Solicitors for the Respondent:

Cooper Grace Ward Lawyers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

The parties have equal shared parental responsibility for the child, X born in 2017 (“the child”).
That the child shall live with the mother.
That the mother is permitted to live with the child in Sydney, New South Wales.
That if the father remains living in Brisbane, Queensland:
(a)the child will spend time with the father for no less than two (2) consecutive nights each fortnight at all times as may be agreed and failing agreement commencing on 1 May 2020 from 4.00pm Friday to 4.00pm Sunday each alternate week in Sydney; and
(b)the mother will be responsible for reimbursing the father within forty-eight (48) hours of receiving proof of purchase from the father of his of economy airfares (cheapest airfares within a three (3) – hour window of changeover to a maximum of $400 return) to and from Sydney for the purpose of spending time with the child.
That each parent is at liberty to call or FaceTime the child between 5.30pm to 6.30pm every day (or any other time agreed) when the child is not in their care, with the other parent to facilitate the child taking the call or FaceTime.
That if the father is living or staying for a period of…

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 Nappert and Pagel

Details

AGLC: NAPPERT & PAGEL [2020] FCCA 1238
Case: [2020] FCCA 1238
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the matter of Nappert and Pagel, heard in the Federal Circuit Court of Australia, Judge Howard made orders concerning the parental responsibility and living arrangements for the child, X, born in 2017. The dispute involved the parents' differing proposals regarding the child's residence and time spent with each parent, particularly in light of the mother's desire to relocate to Sydney, New South Wales, and the father's residence in Brisbane, Queensland.

The court was required to determine issues including the allocation of equal shared parental responsibility, where the child would live, and the specific arrangements for the child to spend time with each parent. A significant factor considered by the court was the impact of the coronavirus pandemic on the parents' professional careers and their current work status, as well as the mother's past experiences of discrimination in Queensland which underpinned her desire to move to Sydney.

Judge Howard's reasoning focused on the mother's perception of discrimination in her healthcare career in Queensland, which she believed hindered her professional potential. The court noted the unchallenged evidence that the mother perceived this discrimination and had taken steps to establish a career in Sydney, including securing mentorship. The judge acknowledged that the mother had been planning a professional move to Sydney for some time prior to the separation. The court ultimately made orders for the child to live with the mother in Sydney, with specific provisions for the child to spend time with the father in Sydney and for the father to travel to Sydney for this purpose, with the mother contributing to airfare costs. The matter was adjourned for a mention in Brisbane.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER:

The parties have equal shared parental responsibility for the child, X born in 2017 (“the child”).

That the child shall live with the mother.

That the mother is permitted to live with the child in Sydney, New South Wales.

That if the father remains living in Brisbane, Queensland:

(a) the child will spend time with the father for no less than two (2) consecutive nights each fortnight at all times as may be agreed and failing agreement commencing on 1 May 2020 from 4.00pm Friday to 4.00pm Sunday each alternate week in Sydney; and

(b) the mother will be responsible for reimbursing the father within forty-eight (48) hours of receiving proof of purchase from the father of his of economy airfares (cheapest airfares within a three (3) – hour window of changeover to a maximum of $400 return) to and from Sydney for the purpose of spending time with the child.

That each parent is at liberty to call or FaceTime the child between 5.30pm to 6.30pm every day (or any other time agreed) when the child is not in their care, with the other parent to facilitate the child taking the call or FaceTime.

That if the father is living or staying for a period of one (1) week or more in Sydney, New South Wales the child will spend time with the father at all times as may be agreed and failing agreement:

(a) from 9.00am on Tuesday to 4.00pm on Wednesday each week; and

(b) from 4.00pm Friday to 4.00pm on Sunday each alternate week

with the Father at liberty to put the child into day care at B Child Care.

That this matter be adjourned for Mention at 9:30am on 17 November 2020 in the Federal Circuit Court of Australia at Brisbane.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, the Court has already identified the proposals of the parties in this case. The issues have also been identified, including the evidence relating to the so-called "unilateral decisions" by the mother and the father. In addition, I will, later in these reasons refer to the relevant legislation contained in Part VII of the Act. One of the most important matters in this case is the question of the parents’ work. Their professional careers and their current work status are crucial in this case. Like so much of Australia at the moment, the work of these parents has been significantly interrupted by the current coronavirus pandemic. The mother is a health care worker and had been working in Queensland, including at Employer K and in Town L as well as other work in Brisbane in the past. The mother has suffered some significant discrimination in the course of her career. I do not understand that to be in dispute. Indeed, much of the evidence in relation to it, can really only come from the mother and her perceptions of the way she has been treated by professional colleagues, including very senior professional colleagues – health care workers with the same speciality in Queensland. The reason I am making particular mention of the evidence in that regard, namely the discrimination that the mother has been subjected to by her professional colleagues in Queensland, is because that seems to me to underpin the mother's desire to move from Queensland and New South Wales. My interpretation of the situation in this family is that – prior to separation – the mother had the father’s support concerning that issue. That is, her desire to move interstate because she considered that she was never going to fully realise her potential as a health care worker in Queensland given that she has been discriminated against. It is not necessary for the Court at this stage to conclude one way or the other, whether in fact Ms Pagel was discriminated against and if so, to what extent. But what I do note is the unchallenged evidence of the mother that her perception is that that is exactly what occurred. The mother took steps then to establish a career as health care worker in Sydney, including by obtaining the support of a colleague who appears to be well regarded in the profession, namely Mr M (a health care worker in Sydney). Mr M has agreed to act as the mentor for the mother, to assist her to establish herself as a health care worker in Sydney. What is apparent to the Court is – that in the years leading up to late 2019, the wheels were in motion for this family to return to Sydney. The mother began to plan her professional career move to Sydney. The mother began to plan the professional advancement of her career in Sydney. It is quite difficult for any professional person to move cities or to move States. It takes time undoubtedly to establish one’s self. I am sure the same would be the case if a barrister were moving from Brisbane to Sydney. At the moment because of the pandemic, the mother is working, doing Skype consultations on at least three days a week.

Ratio Decidendi

Legal Principle Established

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