Nelke and Gemmell - [2012] FMCAfam 867

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NELKE & GEMMELL

[2012] FMCAfam 867

FAMILY LAW – Children – mother in NSW – father and child in Tasmania – whether father moved without mother’s knowledge or consent – whether father seriously assaulted or imprisoned the mother – mother’s subsequent travel to Tasmania – credibility of parties and witnesses – expert opinions and reports - best interests of child.

Family Law Act 1976 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA
Evidence Act 1995 (Cth) s.140

Bolitho and Cohen (2005) FLC 93-224
Briginshaw v Briginshaw (1938) 60 CLR 336
Carpenter and Lunn (2008) FLC 93-382
Chappell and Chappell (2008) FLC 93-377
Helton v Allen (1940) 63 CLR 691
Mills & Watson [2008] FMCAfam 2
MRR v GR (2010) FLC 93-424
Reifek v McElroy (1965) 112 CLR 517
Wainder & Wainder (2011) FLC 93-473

Applicant:

MS NELKE

Respondent:

MR GEMMELL

File Number:

PAC 5297 of 2010

Judgment of:

Roberts FM

Hearing dates:

8, 9, 22 & 23 September 2011 and 28, 29 & 30 November 2011

Date of Last Submission:

30 November 2011

Delivered at:

Launceston

Delivered on:

22 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr W Griffiths

Solicitors for the Applicant:

Adams & Partners Lawyers

Counsel for the Respondent:

Mr D Walker

Solicitors for the Respondent:

David Walker & Co.

Counsel for the Independent Child’s Lawyer:

Mr P Fitzgerald

Solicitors for the Independent Child’s Lawyer:

Legal Aid Commission of Tasmania

ORDERS

That MR GEMMELL (“the father”) and MS NELKE (“the mother”) have equal shared parental responsibility for X born (omitted) 2008 (“the child”)
That the child is to live with the father.
That the child is to communicate with the mother by telephone (or by Skype if available to the parties) as may be agreed between the parties but in default of agreement at least twice per week on Tuesdays and Thursdays between the hours of 5.00 p.m. and 6.00 p.m., with the father to initiate the call to the mother on Tuesday and the mother to initiate the call to the father on Thursday
That until the start of the first term in the 2013 Tasmanian school year the child is to spend time with the mother as follows:
(a)in Sydney in September 2012 and in November 2012 for periods of five (5) nights on dates to be agreed between the parties, but in default of agreement for five (5) nights commencing on the last Wednesday of those months;
(b)in Sydney at Christmas in 2012 for a period of seven (7) nights on dates to be agreed between the parties but in default of agreement commencing on 21 December 2012;
(c)in Sydney for one further period of seven (7) nights prior to the start of the Tasmanian 2013 school year on dates to be agreed but in default of agreement commencing on 20 January 2013; and
(d)at other times as may be agreed between the parties.
That commencing in 2013 the child is to spend time with the mother as follows:
(a)in Sydney on…

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 Nelke and Gemmell

Details

AGLC: Nelke and Gemmell [2012] FMCAfam 867
Case: [2012] FMCAfam 867
Decision Date

CaseChat Overview and Summary

The case of Nelke and Gemmell was a complex parenting matter involving a dispute between the parents over the care and custody of their daughter, X. The primary issues included allegations of domestic violence, sexual assault, and kidnapping by the father against the mother. The court had to determine the credibility of the parties' evidence, the best interests of the child, and whether there were risks of harm to the child. The court found the mother's allegations to be fabricated and not credible, and determined that it was in the child's best interests to continue living with the father in Tasmania. The court ordered that the child would live with the father but spend significant time with the mother, with detailed arrangements for travel and communication between the parents and the child. The court also ordered that both parents have equal shared parental responsibility. The court's decision was based on the child's strong attachment to the father, the lack of credible evidence of harm or risk from the father, and the financial and logistical challenges of maintaining a relationship between the child and the mother.

Orders