PARVEY & BALWIN - [2020] FCCA 2479

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARVEY & BALWIN

[2020] FCCA 2479

Catchwords:
FAMILY LAW – Parenting – interim – ongoing dispute regarding child aged nearly 3 – where parties raise various allegations against each other – where both parties have at times withheld child to the exclusion of other – where parties entered into interim consent orders for shared care – where mother unilaterally relocated child several hours away from father and ceased time – Held pending release of family report child to be returned to live in close proximity to father’s residence – where child live with mother and spend every weekend with father – ICL to be appointed.

Legislation cited:

Family Law Act 1975 (Cth), ss.60CA , 69ZL, Pt.VII

Cases cited:

Baghti & Baghti [2015] FamCAFC 71
Goode and Goode [2006] FamCA 1346
Hardie & Capris [2010] FamCA 1046
Mazorski v Albright (2007) 37 FamLR 518
Moose & Moose [2008] FamCAFC 108

Applicant:

MS PARVEY

Respondent:

MR BALWIN

File Number:

CRC 78 of 2020

Judgment of:

Judge L. Turner

Hearing date:

14 July 2020

Date of Last Submission:

4 August 2020

Delivered at:

Brisbane

Delivered on:

10 September 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Barry of Kells The Lawyers

Solicitors for the Respondent:

Mr Byrnes of Byrnes Lawyers

INTERIM PARENTING ORDERS

That Order (3) of the interim consent orders made in the Town C Local Court on 31 January 2020 be suspended.
That otherwise these interim parenting orders are to read in conjunction with the remainder of the interim parenting orders made on 31 January 2020.
That within 30 days from the date hereof the child X be relocated to live in an area within 50km of Town B in New South Wales.
That in the event the child and the mother relocate in accordance with Order (3) then:
(a)The child live with the mother.
(b)The child spend time with the father every weekend from 9.00am Saturday to 5.00pm Sunday with the overnight time to occur at the paternal grandparents residence with changeover at the police station closest to where the mother is residing.
That in the event the child relocates in accordance with Order (3) and the mother does not relocate with the child then:
(a)The child live with the father at the paternal grandparents’ residence.
(b)The child spend time with the mother as agreed upon between the parties.
That in the event the mother fails to relocate the child within the time frame specified in accordance with Order (3) then upon receiving written notification from the father’s legal practitioners to the judge’s chambers, a recovery order for the child will issue together with interim orders in terms as contained in Order (5).
That the child not be relocated from within 50km of Town B by either party without a court order.
That pursuant to Section 62G of the Family Law Act1975 the parties and the child X born in 2017 attend upon a Family Consultant, as appointed by the Senior Family Consultant 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.

Continue reading PARVEY & BALWIN

Details

AGLC: Parvey and Balwin [2020] FCCA 2479
Case: [2020] FCCA 2479
Decision Date: 10 September 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge L. Turner presided over an interim parenting dispute between Parvey and Balwin concerning their child, X, who was nearly three years old. The parties had a history of allegations against each other and had previously entered into interim consent orders for shared care. However, the mother had unilaterally relocated the child several hours away from the father, ceasing his time with the child.

The court was required to determine the interim parenting arrangements for the child pending the release of a family report. Specifically, the court needed to decide on the child's residence, the father's time with the child, and whether to appoint an Independent Children's Lawyer. The court also had to consider the implications of the mother's relocation and the potential for further court orders if she failed to comply with relocation directions.

The court reasoned that, given the ongoing dispute and the child's young age, it was in the child's best interests to be returned to live in close proximity to the father's residence. The court ordered that the child live with the mother but spend time with the father every weekend. The court also ordered the appointment of a Family Consultant to prepare a family report, with specific directions regarding the content of the report, including the child's views and the factors under section 60CC of the *Family Law Act 1975*. The court further ordered that an Independent Children's Lawyer be appointed to represent the child's interests.

The court made interim parenting orders that, within 30 days, the child X be relocated to live within 50km of Town B, New South Wales. The child was to live with the mother and spend time with the father every weekend. The court also made alternative orders should the mother not relocate with the child, and a recovery order would issue if the mother failed to relocate the child within the specified timeframe. The court also prohibited further relocation of the child without a court order and adjourned the matter for mention.

Orders

Orders of the court

INTERIM PARENTING ORDERS

1. That Order (3) of the interim consent orders made in the Town C Local Court on 31 January 2020 be suspended.

2. That otherwise these interim parenting orders are to read in conjunction with the remainder of the interim parenting orders made on 31 January 2020.

3. That within 30 days from the date hereof the child X be relocated to live in an area within 50km of Town B in New South Wales.

4. That in the event the child and the mother relocate in accordance with Order (3) then:

4. (a) The child live with the mother.

4. (b) The child spend time with the father every weekend from 9.00am Saturday to 5.00pm Sunday with the overnight time to occur at the paternal grandparents residence with changeover at the police station closest to where the mother is residing.

5. That in the event the child relocates in accordance with Order (3) and the mother does not relocate with the child then:

5. (a) The child live with the father at the paternal grandparents’ residence.

5. (b) The child spend time with the mother as agreed upon between the parties.

6. That in the event the mother fails to relocate the child within the time frame specified in accordance with Order (3) then upon receiving written notification from the father’s legal practitioners to the judge’s chambers, a recovery order for the child will issue together with interim orders in terms as contained in Order (5).

7. That the child not be relocated from within 50km of Town B by either party without a court order.

8. That pursuant to Section 62G of the Family Law Act 1975 the parties and the child X born in 2017 attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.

9. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Act the following opinions should be included:

9. (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

9. (b) that the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

9. (c) any other matters that the Family Consultant considers important to the welfare or best interests of the child.

10. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.

11. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

12. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

13. That upon the Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so, for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

14. (a) a Children’s Court;

14. (b) a child protection authority;

14. (c) a State or Territory legal aid authority; and

14. (d) a convener of any legal dispute resolution conference.

15. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

16. That the child X born in 2017 be represented in these proceedings and it is requested that Legal Aid Commission NSW arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.

17. That this matter be adjourned for Mention at 9:30am on 2 February 2021 in the Federal Circuit Court of Australia at Lismore.

18. That the ICL have liberty to apply on short notice.

IT IS NOTED:

A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted, would only form one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of Family Law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 13 herein, they shall write to the Chambers of Judge L. Turner seeking that the matter be listed on short notice for their objection to be heard.

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

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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