Netopoulis and Kitsannis - [2009] FMCAfam 1126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NETOPOULIS & KITSANNIS

[2009] FMCAfam 1126

FAMILY LAW – Children’s issues – mother deceased – maternal grandparent’s application for extension of the time their granddaughter spends with them – additional time opposed by father – ordered some additional time with maternal grandparents.

Family Law Act 1975 ss.60B, 60CA, 60CC

Applicants:

MS NETOPOULIS & MR NETOPOULIS

Respondent:

MR KITSANNIS

File Number:

MLC 4463 of 2009

Judgment of:

Bender FM

Hearing date:

21 October 2009

Date of Last Submission:

21 October 2009

Delivered at:

Melbourne

Delivered on:

21 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

Cash & Stavroulakis Lawyers

Counsel for the Respondent:

Mr McConchie

Solicitors for the Respondent:

F Butera & Co

ORDERS

The father have sole parental responsibility for the child [X] born in 2003 (“[X]”).
[X] live with the father.
[X] spend time and communicate with the maternal grandparents as follows:
(a)each alternate weekend from after school Friday to 5:00pm Sunday;
(b)during school term, each Wednesday from after school to 6:00pm;
(c)for one week in the July school term holidays as agreed between the parties and failing agreement for the first week from 10:00am on the first Saturday to 10:00am on the second Saturday;
(d)for one week in the long summer vacation as agreed between the parties and failing agreement from 10:00am on January 10 to 10:00am on January 17 each year;
(e)from 3:00pm Christmas Eve to 10:00am Christmas Day in odd numbered years;
(f)from 10:00am to 4:00pm Christmas Day in even numbered years;
(g)for four hours on [X]’s birthday and the mother’s birthday from 4:00pm to 8:00pm;
(h)from 4:00pm on the Saturday preceding Greek Orthodox Easter Sunday until 4:00pm on Greek Orthodox Easter Sunday in each odd numbered year;
(i)from 4:00pm until 8:00pm each Greek Orthodox Easter Sunday in even numbered years;
(j)from 10:00am to 4:00pm each Mother’s Day; and
(k)as otherwise as agreed between the parties.
In the event [X] is spending time with the maternal grandparents on the Father’s Day weekend, such time shall be suspended each Father’s Day from 10:00am;
The father shall facilitate [X] telephoning the maternal grandparents upon her reasonable request to do so.
Whilst [X] is spending time with the maternal grandparents, the maternal grandparents shall facilitate [X] telephoning her father upon her reasonable request to do so.
The maternal grandparents shall be permitted to attend [X]’s end of year school concert, speech night and any concerts, performances or sporting events in which [X] is a participant.
The maternal grandparents shall be responsible for the travel arrangements associated with their time with [X].
In the event [X] requires medical treatment whilst with her maternal grandparents they shall immediately notify the father.
In the event [X] suffers any serious illness or accident when with the father, he shall advise the maternal grandparents.

IT IS NOTED that publication of this judgment under the pseudonym Netopoulis & Kitsannis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT 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.

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Details

Case: [2009] FMCAfam 1126
Decision Date: 21 October 2009

CaseChat Overview and Summary

The case of Netopoulis and Kitsannis involved the determination of parental responsibility and arrangements for the child [X] born in 2003. The dispute centred around the allocation of parental responsibilities between the father and the maternal grandparents, as well as the visitation and communication arrangements for [X]. The Family Court of Australia was tasked with resolving these issues.

The court had to decide the allocation of parental responsibility for [X] and the specifics of the living and visitation arrangements with the maternal grandparents. The primary concern was to ensure that [X] maintains a meaningful relationship with both parents and the maternal grandparents, balancing the best interests of the child with the need for stability and continuity in her life. The court also needed to determine the communication provisions between [X], her father, and the maternal grandparents.

The court awarded sole parental responsibility to the father, recognising his ability to provide for [X]'s physical, emotional, and educational needs. The decision emphasised the importance of [X] living with her father while ensuring extensive contact with the maternal grandparents. The detailed visitation schedule aimed to provide a balanced arrangement that allows [X] to maintain strong relationships with both sides of her family. The court mandated specific communication provisions to ensure ongoing contact between [X], her father, and the maternal grandparents. Additionally, the court addressed practical matters such as travel arrangements, medical notifications, and attendance at significant events.

The court's orders detail specific times for [X] to spend with the maternal grandparents, communication provisions, and responsibilities for medical emergencies and notifications. The maternal grandparents were also granted permission to attend [X]'s school events and performances. The father was instructed to facilitate and the maternal grandparents to support [X]'s communication with her father and maternal grandparents, respectively, during visitation periods.

Orders

Orders of the court

The father have sole parental responsibility for the child [X] born in 2003 (“[X]”).

[X] live with the father.

[X] spend time and communicate with the maternal grandparents as follows:

(a) each alternate weekend from after school Friday to 5:00pm Sunday;

(b) during school term, each Wednesday from after school to 6:00pm;

(c) for one week in the July school term holidays as agreed between the parties and failing agreement for the first week from 10:00am on the first Saturday to 10:00am on the second Saturday;

(d) for one week in the long summer vacation as agreed between the parties and failing agreement from 10:00am on January 10 to 10:00am on January 17 each year;

(e) from 3:00pm Christmas Eve to 10:00am Christmas Day in odd numbered years;

(f) from 10:00am to 4:00pm Christmas Day in even numbered years;

(g) for four hours on [X]’s birthday and the mother’s birthday from 4:00pm to 8:00pm;

(h) from 4:00pm on the Saturday preceding Greek Orthodox Easter Sunday until 4:00pm on Greek Orthodox Easter Sunday in each odd numbered year;

(i) from 4:00pm until 8:00pm each Greek Orthodox Easter Sunday in even numbered years;

(j) from 10:00am to 4:00pm each Mother’s Day; and

(k) as otherwise as agreed between the parties.

In the event [X] is spending time with the maternal grandparents on the Father’s Day weekend, such time shall be suspended each Father’s Day from 10:00am;

The father shall facilitate [X] telephoning the maternal grandparents upon her reasonable request to do so.

Whilst [X] is spending time with the maternal grandparents, the maternal grandparents shall facilitate [X] telephoning her father upon her reasonable request to do so.

The maternal grandparents shall be permitted to attend [X]’s end of year school concert, speech night and any concerts, performances or sporting events in which [X] is a participant.

The maternal grandparents shall be responsible for the travel arrangements associated with their time with [X].

In the event [X] requires medical treatment whilst with her maternal grandparents they shall immediately notify the father.

10.

In the event [X] suffers any serious illness or accident when with the father, he shall advise the maternal grandparents.

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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