Norris & Ishikawa (No 2) - [2023] FedCFamC1F 708

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Norris & Ishikawa (No 2) [2023] FedCFamC1F 708

File number(s): SYC 4494 of 2021

Judgment of: SCHONELL J

Date of judgment: 22 August 2023

Catchwords: FAMILY LAW – PARENTING – Interim orders – Overseas travel – Where the father has sole parental responsibility and the children spend no time with the mother – Where the father sought to travel with the children to Country P – Where the mother contended that there is a risk the children will not return – Where Country P is a Hague Convention country – Where there may be issues with enforceability of orders of this Court in Country P – Where the Court is required to act cautiously – Father’s application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 14

Cases cited:
Adamson & Adamson [2018] FamCA 523

DeLuca & Farnham [2019] FamCAFC 100

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line v Line (1997) FLC 92-729; [1996] FamCA 145

Division: Division 1 First Instance

Number of paragraphs: 36

Date of hearing: 18 August 2023

Place: Heard in Sydney, delivered in Brisbane

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Kydon Segal Legal Lawyers

Counsel for the Respondent: Mr Scarlett OAM RFD

Solicitor for the Respondent: Phillip A Wilkins & Associates

Solicitor for the Independent Children’s Lawyer: Chidiac Legal (Did not participate)
ORDERS

SYC 4494 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ISHIKAWA

Applicant

AND:
MS NORRIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

22 AUGUST 2023

THE COURT ORDERS THAT:
1.The applicant father’s Application in a Proceeding filed 2 May 2023 is dismissed.
2.The respondent mother’s Response to Application in a Proceeding filed 4 June 2023 is dismissed.
3.Within 14 days from the date of these orders, the mother do all acts and things to ensure that the children are added to the father’s private health insurance policy including but not limited to removing the children from her policy.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norris & Ishikawa has been approved pursuant to s 121(9)(g) of the Family…

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 Norris & Ishikawa (No 2)

Details

AGLC: Norris & Ishikawa (No 2) [2023] FedCFamC1F 708
Case: [2023] FedCFamC1F 708
Decision Date

CaseChat Overview and Summary

In the case of Norris & Ishikawa, the court addressed an application made by the father, who sought to modify the existing interim orders regarding the care and supervision of the two children born from his relationship with the mother. The mother had initially sought various orders in her response, but by the time of the hearing, she requested the dismissal of the father's application. The parents, who separated under the same roof in March 2021, had a contentious history marked by allegations of family violence. In December 2021, the court granted the father sole parental responsibility, ordered the children to reside with him, and set specific visitation and communication terms with the mother.

The legal issues before the court involved determining whether the existing interim orders should be modified in light of the father's allegations of assault by the mother, which occurred in mid-2022. The father claimed that the assault, which took place in the presence of their daughter, resulted in injuries that required stitches, leading to an apprehended domestic violence order (ADVO) being granted against the mother. The mother had pleaded not guilty to the associated charges and had applied for a mental health assessment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The father argued that the children had not spent any time with the mother since the assault and remained fearful of her.

The court considered the best interests of the children, as mandated by s 60CA of the Family Law Act 1975 (Cth), and took into account the relevant considerations outlined in s 60CC. Given the interim nature of the hearing and the absence of cross-examination, the court was unable to make findings on the disputed facts. Consequently, the court deliberated on the existing circumstances and the impact of the alleged assault on the children's welfare. The outcome of the hearing will determine whether the interim orders should be modified to reflect the current situation and protect the children's best interests.

Orders

Orders of the court

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Background

Background to the litigation

The mother for her part sought a range of orders in her Response to Application in a Proceeding filed 4 June 2023, but by the time of the hearing sought a simple dismissal of the father’s application.BACKGROUND The mother was born in 1972 and is currently 51 years of age. The father was born in 1974 and is currently 48 years of age. The parties commenced cohabitation in or about 1999 or 2000 and separated under the one roof on 6 March 2021. There are two children of their relationship as referred to above. The children have lived with the father since separation. On 20 December 2021, following a contested hearing, interim orders were made by a judge of Division 1 granting the father sole parental responsibility, that the children live with the father and spend time with the mother each Saturday between 10.00 am and 4.00 pm as well as orders for telephone communication. The parties were restrained from changing the children’s place of residence and an order was made for the preparation of a single expert report. The parties were also restrained from causing the vaccination of the children and the father was granted exclusive occupation of the home. The affidavits of the parties reveal a highly conflictual relationship which includes allegations of family violence. The father contended that in mid-2022, he was assaulted by the mother. The assault occurred in the home of the parties. He contended that the mother entered the home and physically assaulted him in the presence of the parties’ daughter such that he required stitches to a wound on his head. As a consequence of the assault, the father was granted an apprehended domestic violence order (“ADVO”) and the mother was charged with multiple offences. The mother has entered a plea of not guilty. The mother said that the charges are not listed to be heard until later this year and that she has made an application pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). If that application is not successful, then the balance of the charges will be heard later this year. The children have not spent any time with the mother since the assault and the father contended that they remain extremely fearful of her. APPLICABLE LAW Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), my reasons are by necessity short. This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts of which there are many. Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII. In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is required to take into account.

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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File number(s):	SYC 4494 of 2021
Judgment of:	SCHONELL J
Date of judgment:	22 August 2023
Catchwords:	FAMILY LAW – PARENTING – Interim orders – Overseas travel – Where the father has sole parental responsibility and the children spend no time with the mother – Where the father sought to travel with the children to Country P – Where the mother contended that there is a risk the children will not return – Where Country P is a Hague Convention country – Where there may be issues with enforceability of orders of this Court in Country P – Where the Court is required to act cautiously – Father’s application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 14
Cases cited:	Adamson & Adamson [2018] FamCA 523 DeLuca & Farnham [2019] FamCAFC 100 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26 Line v Line (1997) FLC 92-729; [1996] FamCA 145
Division:	Division 1 First Instance
Number of paragraphs:	36
Date of hearing:	18 August 2023
Place:	Heard in Sydney, delivered in Brisbane
Counsel for the Applicant:	Ms Cantrall
Solicitor for the Applicant:	Kydon Segal Legal Lawyers
Counsel for the Respondent:	Mr Scarlett OAM RFD
Solicitor for the Respondent:	Phillip A Wilkins & Associates
Solicitor for the Independent Children’s Lawyer:	Chidiac Legal (Did not participate)

SYC 4494 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ISHIKAWA Applicant
AND:	MS NORRIS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	22 AUGUST 2023