Ninsel and Ninsel - [2018] FamCA 414

FAMILY COURT OF AUSTRALIA

NINSEL & NINSEL

[2018] FamCA 414

FAMILY LAW – CHILDREN – International relocation – Where the children have not had any time with the father for over two years.

Family Law Act 1975 (Cth) ss. 60CA, 60CC, 61DA
Evidence Act 1995 (Cth)

U v U (2002) 211 CLR 238
Boyle & Zahur and Anor (No. 2) (2017) FLC 93-814
Molloy & Reid [2018] FamCAFC 89
Goode & Goode [2006] FamCA 1346

APPLICANT:

Ms Ninsel

RESPONDENT:

Mr Ninsel

FILE NUMBER:

BRC

9881

2016

DATE DELIVERED:

8 June 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

26, 27 & 28 February and 1, 2, 14, 15 & 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr J Brasch QC

SOLICITOR FOR THE APPLICANT:

Leishman Legal

COUNSEL FOR THE RESPONDENT:

Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Family Law Solutions

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr K Fleming SC

INDEPENDENT CHILDREN’S LAWYER

Berck Solicitors

Orders

That the following parenting orders are made in respect of the children, X born … 2010 and Y born … 2012 (“the children”).

Parental responsibility

That in exercising parental responsibility pursuant to Section 61C of the Family Law Act 1975 (“the Act”) the mother and father shall consult with one another in relation to decisions to be made about major long term issues (as defined in the Act) in relation to the children.
That the mother and father do all things and sign all documents required to enrol the children at B Primary School.
That the mother and father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children, during the time that the children are in their care.

Passports

That the mother and father shall sign all documents, give all consents and do all necessary acts and things as may be necessary to enable the children to be issued with an Australian passport and for that purpose the father return to the mother’s solicitors within seven (7) days of the date of this Order, passport Applications for each of the children with the relevant sections required to be completed by the father completed.
That the mother and father sign all documents, give all consents and do all necessary acts and things as may be necessary to renew an Australian passport for the children no later than six (6) months prior to the expiry date of the passports.
That the passports are to be held by the mother.

Living arrangements

That the children live with the mother and the mother be permitted to relocate with the children to New Zealand on or after 30 September 2018.
That until the children relocate to New Zealand, the children shall spend time with the father as follows:
(a)On no more than one (1) day each week (when not otherwise spending time with the father under this Order), between 9.00am and 5.00pm on the father giving to the mother not less…

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 Ninsel and Ninsel

Details

AGLC: Ninsel and Ninsel [2018] FamCA 414
Case: [2018] FamCA 414
Decision Date: 8 June 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Baumann J in the Federal Circuit Court of Australia regarding two children, X and Y. The dispute involved the arrangements for the children's living situation, time spent with each parent, communication, and other related matters, including the father's attendance at a domestic violence behaviour change program and restrictions on both parents' conduct.

The court was required to determine a comprehensive set of parenting orders addressing parental responsibility for major long-term issues and day-to-day care, the process for obtaining and holding passports, the children's living arrangements including a relocation to New Zealand, the specific times the children would spend with the father both before and after the relocation, and the procedures for changeovers. Further issues included the method and frequency of communication between the parents and the children, the exchange of medical and educational information, and various restraints on the parents' behaviour towards each other and the children.

In making its orders, the court applied the principles of the *Family Law Act 1975* (Cth) concerning parental responsibility and the best interests of the children. The orders reflect a detailed framework for shared parental responsibility on major issues, with the mother having primary care and the ability to relocate the children to New Zealand. Specific provisions were made for the father's time with the children, including detailed schedules for contact both before and after the relocation, and arrangements for communication and information sharing. The court also imposed specific behavioural requirements on the father, including attendance at a program, and placed mutual restraints on both parents to protect the children from inappropriate discussions and conduct.

The court made detailed parenting orders covering parental responsibility, passports, living arrangements, time spent with each parent, changeovers, communication, and miscellaneous provisions including attendance at a domestic violence program and various restraints on parental behaviour. The orders also authorised the school to provide information to both parents regarding the children's educational progress.

Orders

Orders of the court

That the following parenting orders are made in respect of the children, X born … 2010 and Y born … 2012 (“the children”).

Parental responsibility

That in exercising parental responsibility pursuant to Section 61C of the Family Law Act 1975 (“the Act”) the mother and father shall consult with one another in relation to decisions to be made about major long term issues (as defined in the Act) in relation to the children.

That the mother and father do all things and sign all documents required to enrol the children at B Primary School.

That the mother and father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children, during the time that the children are in their care.

Passports

That the mother and father shall sign all documents, give all consents and do all necessary acts and things as may be necessary to enable the children to be issued with an Australian passport and for that purpose the father return to the mother’s solicitors within seven (7) days of the date of this Order, passport Applications for each of the children with the relevant sections required to be completed by the father completed.

That the mother and father sign all documents, give all consents and do all necessary acts and things as may be necessary to renew an Australian passport for the children no later than six (6) months prior to the expiry date of the passports.

That the passports are to be held by the mother.

Living arrangements

That the children live with the mother and the mother be permitted to relocate with the children to New Zealand on or after 30 September 2018.

That until the children relocate to New Zealand, the children shall spend time with the father as follows:

(a) On no more than one (1) day each week (when not otherwise spending time with the father under this Order), between 9.00am and 5.00pm on the father giving to the mother not less than seven (7) days’ notice in writing (including by text message);

(b) From 9.00am Saturday, 16 June 2018 to 5.00pm Sunday, 17 June 2018;

(i) 9.00am Friday, 29 June 2018 to 5.00pm Sunday, 1 July 2018;

(ii) 9.00am Friday, 13 July 2018 to 5.00pm Sunday, 15 July 2018 (two nights);

(iii) 9.00am Friday, 27 July 2018 to 10.00am Monday, 30 July 2018 (three nights);

(iv) 9.00am Friday, 10 August 2018 to 10.00am Tuesday, 14 August 2018 (four nights);

(v) 9.00am Friday, 24 August 2018 to 10.00am Monday, 27 August 2018 (three nights);

(vi) 9.00am Friday, 7 September 2018 to 10.00am Monday, 10 September 2018 (three nights); and

(vii) 9.00am Friday, 21 September 2018 to 5.00pm Friday, 28 September 2018 (seven nights).

10.

That when the children relocate to New Zealand, the children shall spend time with the father, unless otherwise agreed in writing, as follows in Australia:

(a) From 2019 onwards for all of the New Zealand end of term one (1) school holidays, save that the children be returned to the mother the Friday before school commences;

(b) From 2019 onwards for the first half of the New Zealand end of term two (2) school holidays;

(c) From 2019 onwards for all of the New Zealand end of term three (3) school holidays, save that the children be returned to the mother the Friday before school commences;

(d) For half of the New Zealand December/January school holidays each year commencing in 2018 with the first half of the holidays and in 2019 with the second half of the holidays and alternating each year thereafter, the effect of which is to ensure the children spend Christmas Day in one year with one parent, and in the other year, with the other parent, with Christmas Day spent with the father; and

(e) On the giving of seven (7) days’ notice in writing to the mother for one (1) weekend each New Zealand school term from after school on Thursday until before school the following Monday, in New Zealand.

11.

For determining “half”, the school holiday period will commence on the last day of school term and conclude on the Friday before school resumes. To calculate half the mother and father will use the number of nights of each school holiday period, divided by two (2), and in the event that there is an uneven number of nights then the father shall spend the extra night with the children in odd numbered years and the mother shall spend the extra night with the children in even numbered years.

Changeovers

12.

That in relation to changeovers:

(a) until the children relocate to New Zealand, unless otherwise agreed in writing, changeovers in respect of time under Order 9 hereof shall occur at the C Cinema and shall be facilitated by the mother’s nominee known to the children and the father or his nominee;

(b) after the children have relocated, changeovers for school holidays as prescribed by Order 11 shall take place:

(i) at the commencement of each holiday period at Brisbane International Airport; and

(ii) at the conclusion of each holiday period at City D International Airport.

(c) If the father exercises the opportunity to spend time with the children in New Zealand, changeovers shall occur at the children’s school, unless otherwise agreed in writing.

Communication

13.

That:

(a) the parent who does not have care of the children shall communicate with the children by telephone or Facetime twice per week between 6.30pm and 7.00pm (by reference to the time where the children are at the time of the call) as agreed and if not agreed on Wednesday and Sunday;

(b) the other parent will initiate and facilitate such calls and ensure that the children have privacy during the calls; and

(c) the parent with the care of the children shall initiate the telephone or Facetime with the children’s other parent on Mother’s Day, Father’s Day, the children’s birthdays and Christmas Day.

Miscellaneous

14.

That the father attend and complete a Domestic Violence Behaviour Change Program and provide a certificate of completion to the mother’s solicitors within sixty (60) days.

15.

That the mother and father shall:

(a) keep the other parent informed of the names and addresses of any treating medical or health practitioners who treat the children and hereby authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and

(b) inform the other parent by text message as soon as reasonably practicable of any urgent medical condition, significant health issue or illness suffered by the children.

Authorities

16.

That the parents authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

Restraints

17.

That both parents respect the privacy of the other parent and not question the children about the personal life of the other parent.

18.

That both parents be restrained from:

(a) denigrating the other party to the children, or within their presence or hearing;

(b) discussing these proceedings with the children or within their presence or hearing;

(d) physically disciplining the children; and

(e) consuming alcohol above the legal blood alcohol driving limit while the children are in their care.

19.

That the father shall not engage in any sexual activity including the accessing of pornography either electronically or in hard copy in the presence or hearing of the children.

20.

That the parties shall file and serve any written submissions within twenty one (21) days indicating any variations to the proposed order for the “travelling fund” referred to at paragraph 135 of the Reasons delivered 8 June 2018.

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

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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