NOEL & NOEL - [2020] FamCA 699

FAMILY COURT OF AUSTRALIA

NOEL & NOEL

[2020] FamCA 699

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Interim – Where final orders were made by consent for the children to live with the mother and spend time with the father – Where the father is on deployment in Country C – Where the eldest child has recently been in the father’s primary care – Where the father seeks the eldest child remain in his care – Where the mother is concerned about the child living in Country C – Where the child has expressed a strong desire to live with the father in Country C – Where siblings are separated – Consideration of best interests of the child – Consideration of the child’s wishes – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel & Marvel [2010] FamCAFC 101
Sayer & Radcliffe and Anor [2012] FamCAFC 209

APPLICANT:

Mr Noel

RESPONDENT:

Ms Noel

FILE NUMBER:

SYC

3094

2013

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

20 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Ross

SOLICITOR FOR THE RESPONDENT:

Aboriginal Legal Rights Movement

it is ordered until further order:

That Y born … 2006 live with the father.
That X born … 2009 live with the mother.
That the father shall facilitate Y communicating with the mother and for the purpose of communication the father shall provide Y with a mobile telephone and ensure that the said phone has credit on it at all times.
That the mother shall facilitate X communicating with the father and for the purpose of communication the mother shall provide X with a mobile telephone and ensure that the said phone has credit on it at all times.
That the parties shall advise each other of any medical or other emergency involving either of the children whilst in their respective care.
That the parties shall do all things necessary and give all such permission and authority as may be required to enable Y to leave the Commonwealth of Australia and travel to Country C on 26 August 2020.
That in the absence of consent of the parties, the father shall have sole parental responsibility for the child Y in terms of any travel arrangements to facilitate the child’s travel to Country C.
That the father do keep the mother informed at all times of the residential address, contact telephone number and email address for Y.
That the father shall use his best endeavours to facilitate any wish as may be expressed by Y to speak to a counsellor or engage in a therapeutic process, and in particular shall forthwith advise the mother of any wish expressed by Y to return to Australia and to the care of the mother in Adelaide.

Note: The form of the order is subject…

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 NOEL & NOEL

Details

AGLC: NOEL & NOEL [2020] FamCA 699
Case: [2020] FamCA 699
Decision Date: 25 August 2020

CaseChat Overview and Summary

The case of *Noel & Noel* concerned a dispute between two parties, Noel and Noel, heard before Berman J. The precise nature of the dispute is not detailed in the provided text, but it involved a legal matter requiring judicial determination.

The central legal issue before Berman J was to resolve the disagreement between the parties. The specific legal questions that arose from this dispute are not elaborated upon in the provided text.

Berman J's reasoning and the legal principles applied in reaching a decision are not detailed in the provided text. Consequently, the final orders or outcome of the case cannot be stated.

Orders