Randal and Karpati & Anor (No. 2) - [2019] FamCA 335

FAMILY COURT OF AUSTRALIA

RANDAL & KARPATI AND ANOR (NO. 2)

[2019] FamCA 335

FAMILY LAW – CHILDREN – Parenting – Contravention – Where the father alleges that the mother contravened parenting Orders reached by consent – Where six contraventions were considered and the mother denies contravening on five occasions and asserts that she had a “reasonable excuse” for contravening on the other occasion – Where the mother did not contravene on two occasions as the supervisor withdrew her supervision services and it is unlikely she could have been convinced to stay by the mother – Where the mother contravened on three occasions by not doing all that she reasonably could to convince the female child to participate in contact with the father – Where the mother contravened on a further occasion and did not have a “reasonable excuse” to do so as not allowing the time with the paternal grandmother supervising was not necessary to protect the health and safety of the children in the circumstances, especially as both parties consented to her role in supervising time – Where the mother was ordered to pay a portion of the father’s costs and compensatory time was ordered – Where the previous Orders in place are altered to allow all of the children, including the female child, increased time with the father.

Family Law Act 1975 (Cth)

Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655
In the Marriage of Stavros (1984) FLC 91-562; [1984] FamCA 38
In the Marriage of Stevenson & Hughes (1993) FLC 92-363; [1993] FamCA 14

APPLICANT:

Mr Randal

FIRST RESPONDENT:

Ms Karpati

SECOND RESPONDENT:

Mr Eckford

INDEPENDENT CHILDREN’S LAWYER:

Hazrabee Mustaffa

FILE NUMBER:

BRC

7013

2017

DATE DELIVERED:

26 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

4 December 2018,
16 January and 14 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kirkman-Scroope

SOLICITOR FOR THE APPLICANT:

Butler McDermott

COUNSEL FOR THE FIRST RESPONDENT:

Ms Harris

SOLICITOR FOR THE FIRST RESPONDENT:

Neilson Stanton & Parkinson

THE SECOND RESPONDENT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mustaffa
HM Lawyers

Orders

IT IS DECLARED

That on 12 August 2018, the First Respondent Mother (“the mother”) contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 14 August 2018, the mother contravened paragraph 2(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 21 August 2018, the mother contravened paragraphs 2(a) and 3(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 26 August 2018, the mother contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.

IT IS ORDERED

That all previous parenting orders are discharged, save for paragraphs 10 – 22 of the Orders of Judge Spelleken of the Federal Circuit Court, made…

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: [2019] FamCA 335
Decision Date: 26 March 2019

CaseChat Overview and Summary

In this matter before Forrest J, the court considered a dispute between the First Respondent Mother and the Applicant Father concerning parenting orders. The proceedings involved allegations of contravention of existing orders by the mother.

The court was required to determine whether the mother had contravened specific paragraphs of parenting orders made on 10 August 2018, and if so, whether she had done so without reasonable excuse. Additionally, the court needed to make orders regarding the future living arrangements and time spent between the children and each parent, as well as address parental responsibility for major long-term issues.

Forrest J declared that the mother had contravened paragraphs 2(c), 2(a), and 3(a) of the orders made on 10 August 2018 on multiple occasions without reasonable excuse. Consequently, the court discharged all previous parenting orders, with the exception of specific paragraphs from orders made on 10 November 2017. The court then made new orders until further order, stipulating that the children shall live with the mother, with detailed provisions for the children to spend time with the father, including alternate weekends, mid-week time, and school holiday arrangements. The orders also clarified equal shared parental responsibility for two children and sole parental responsibility for the third on major long-term issues, with specific exceptions. Provisions were also made for handover arrangements, including the use of a contact centre or parental homes, and the mother was ordered to pay $500 towards the father's costs of the contravention proceedings.

Orders

Orders of the court

IT IS DECLARED

That on 12 August 2018, the First Respondent Mother (“the mother”) contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.

That on 14 August 2018, the mother contravened paragraph 2(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.

That on 21 August 2018, the mother contravened paragraphs 2(a) and 3(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.

That on 26 August 2018, the mother contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.

IT IS ORDERED

That all previous parenting orders are discharged, save for paragraphs 10 – 22 of the Orders of Judge Spelleken of the Federal Circuit Court, made with the consent of the Applicant Father (“the father”) and the mother on 10 November 2017.

IT IS ORDERED UNTIL FURTHER ORDER

That the children, X born … 2011, Y born … 2016 and Z born … 2017 (“the children”), shall live with the mother.

That from Saturday, 30 March 2019, the children, X and Y, shall spend time with the father:

(a) Each alternate weekend from 9.00 am on Saturday until 3.00 pm on Sunday;

and, in addition:

(b) By way of compensatory time for time missed with their father, from 9.00 am on Saturday, 6 April 2019 until 3.00 pm on Sunday, 7 April 2019; and

That from Friday, 10 May 2019, the children, X and Y, shall spend time with the father:

(a) Each alternate weekend from 3.30 pm on Friday until 3.00 pm on Sunday; and

(b) Each Wednesday afternoon from 3.30 pm until 5.30 pm.

That the child, Z, shall spend time with the father:

(a) at the same time as the other two children on each Wednesday afternoon; and

(b) commencing on the weekend of 30 and 31 March 2019, for a two hour period on the Saturday and for a two hour period on the Sunday, each and every weekend that the other two children are spending time with the father, such time to be between the hours of 9.00 am and 5.00 pm on each of those days as nominated by the mother and made known to the father in writing on or before Thursday 28 March 2019;

(c) commencing on the weekend of 6 and 7 April 2019, for a two hour period each alternate weekend that the other two children are not spending time with the father, such time to be between the hours of 9.00 am and 5.00 pm on either Saturday or Sunday, such day and time to be nominated by the mother and made known to the father in writing on or before Tuesday, 2 April 2019.

That should Mother’s Day fall on a weekend when the children are to spend time with the father pursuant to these Orders, they shall be returned to the mother’s care at 6.00 pm on Saturday, the day before Mother’s Day.

That should Father’s Day fall on a weekend when the children are not to spend time with the father pursuant to these Orders, they shall spend time with him from 6.00 pm on Saturday, the day before Father’s Day until 3.00 pm on Father’s Day.

That from the commencement of the September-October school holidays in 2019, the children, X and Y, shall spend half of each gazetted Queensland state school holidays with the father, being the second half of those holidays in 2019 (including the summer school holidays commencing in December of that year) and alternate years thereafter and the first half of those holidays in 2020 (including the summer school holidays commencing in December of that year) and alternate years thereafter.

That at the commencement of the September-October school holidays in 2019, the requirement for the two older children, X and Y, to spend time with the father on alternate weekends shall be suspended during each school holiday period and shall recommence on the second weekend of the next school term when the children have just spent the second half of the school holidays with the father and on the first weekend of the next school term when the children have just spent the first half of the school holidays with the father.

10.

That unless by written agreement between the mother and the father, there shall be no variation to these Orders in respect of the children’s birthdays or either of the parents’ birthdays, and the children shall live with the mother and spend time with the father in accordance with these Orders regardless of how any of their birthdays otherwise fall.

11.

That unless by written agreement between the mother and the father, there shall be no variation to these Orders in respect of Christmas this year, 2019, and the children shall live with the mother and spend time with the father in accordance with these Orders regardless of when Christmas otherwise falls.

12.

That the mother and the father shall have equal shared parental responsibility for the children, Y and Z, for all decisions about “major long-term issues” as that term is defined in s 4 of the Family Law Act 1975 (Cth).

13.

That the mother shall have sole parental responsibility for the child, X, for all decisions about “major long-term issues” as that term is defined in s 4 of the Family Law Act 1975 (Cth), save for decisions about changes to X’s living arrangements that make it significantly more difficult for X to spend time with the father, for which the mother shall require the father’s agreement or an Order of the Court.

14.

That in the first instance, the handover of the children from the mother to the father at the commencement of their time with the father and from the father back to the mother at the conclusion of their time with him, shall take place at the D Contact Centre as might be able to be arranged by the parents with the D Contact Centre, with the parents to share equally any costs charged by the D Contact Centre.

15.

That in the event that the D Contact Centre is not available to ensure that the children transition from one parent’s care to the other parent’s care pursuant to these Orders, then, unless otherwise agreed in writing between the mother and the father, such handovers are to take place by the mother delivering the children to the father at his home, at the commencement of the time they spend with him, and by the father delivering the children to the mother at her home, at the conclusion of the time they spend with him, with each party being at liberty to have another adult person accompany them and/or be present with them at such handovers.

16.

That notwithstanding the other terms of this Order, should the D Contact Centre not be available to facilitate the handover of Z from the father to the mother at the end of any of the time that Z spends with the father pursuant to these Orders and the father is, pursuant to paragraph 15 hereof, required to return Z to his mother at his mother’s home in Town B, then, on such occasions, Z shall not be required to be returned to the mother’s home by the father until three hours have expired from when he first came into the father’s care.

17.

That the mother and the father shall, of course, be at liberty to agree to vary the terms of any of these Orders, such as, for example, if the baby, Z, ceases to be breastfed by the mother and they agree that he can begin to spend longer periods of time with the father.

18.

That, unless the mother and the father otherwise agree in writing, where relevant, the first and second half of school holidays are to be calculated as follows and the following applies:

(a) The school holidays actually commence at the time of the formal end of X’s last day of school term (i.e. when school is let out on that day);

(b) The school holidays actually conclude at the time of the formal start of X’s first day of the next school term (i.e. when school goes in on that day);

(c) The exact mid-point of that total time is to be calculated, and if it falls at or between the hours of 8.00 am and 6.00 pm on a given day, then that is when the children are to be handed over;

(d) If the exact mid-point of that total time falls outside those hours just given (i.e. overnight on any given night) but before midnight then the children shall be handed over at 6.00 pm on that same day;

(e) If the exact mid-point of that total time falls outside those hours just given (i.e. overnight on any given night) but after midnight then the children shall be handed over at 9.00 am on morning after;

(f) Where the father is to have the first half of the school holidays the children shall be delivered to him at 4.00 pm on that last day of school; and

(g) Where the father is to have the second half of the school holidays the children shall be returned by him to the mother at 5.00 pm on the day before the first day of school term.

19.

That the mother pay $500 towards the father’s costs of the contravention proceedings.

20.

That any further interim applications or contravention applications shall be listed before his Honour Justice Forrest, unless that is impracticable.

21.

The matter is to be removed from the Magellan list of matters awaiting trial.

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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