Spellmann & Mallett - [2022] FedCFamC2F 1051

Federal Circuit and Family Courtof Australia
(DIVISION 2)
Spellmann & Mallett [2022] FedCFamC2F 1051

File number(s): SYC 4246 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 29 July 2022

Catchwords: FAMILY LAW – interim parenting – where one party lives in United States of America – consent orders made prior to Covid-19 border closures – no face-to-face time spending since 2019 – parenting orders pending determination of Rice v Asplund

Legislation:
Family Law Act 1975 (Cth) ss. 60CC, 60CC(3)(d), 69ZL

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Goode & Goode [2006] FLC 93-286 Phillips & Hansford (No. 2) [2019] FamCAFC 165

Rice & Asplund (1979) FLC 90-215

Division: Division 2 Family Law

Number of paragraphs: 28

Date of last submission/s: 28 July 2022

Date of hearing: heard in Sydney on 28 July 2022 and delivered in Adelaide on 29 July 2022

Place: Sydney and Adelaide

Counsel for the Applicant: Mr Ahmad on 28 July 2022 and Ms Ali on 29 July 2022

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Watkins on 28 July 2022 and no appearance on 29 July 2022

Solicitor for the Respondent: Petkovic & Todd
ORDERS

SYC 4246 of 2022

FEDERAL CIRCUIT AND FAMILY COURTOF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SPELLMANN

Applicant

AND:
MR MALLETT

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

29 JULY 2022

THE COURT ORDERS THAT:
1.Orders 6 to 8 of the orders of 12 February 2020 be suspended.
2.The father spend time and communicate with the child X born in 2013 in Australia as follows:
September 2022 school holidays
(a)In week one for five (5) nights as agreed and failing agreement from 5.00pm on the first Monday until 5.00pm Saturday;
(b)In week two for six (6) nights as agreed and failing agreement from 5.00pm on the second Monday until 5.00pm on the last Sunday.

December 2022/January 2023 school holidays:
(a)For seven (7) nights as agreed and failing agreement from 5.00pm on 23 December until 5.00pm on 30 December 2022 and for a further seven (7) nights as agreed and failing agreement from 5.00pm on 4 January until 5.00pm on 11 January 2023.

3.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born in 2013 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on a date to be advised in late January/early February with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.

Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the…

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 Spellmann & Mallett

Details

AGLC: Spellmann & Mallett [2022] FedCFamC2F 1051
Case: [2022] FedCFamC2F 1051
Decision Date

CaseChat Overview and Summary

This case concerns the interim parenting arrangements for a child born in 2013. The applicant, Ms. Spellmann, and the respondent, Mr. Mallett, were previously married and have a daughter, X. The child lives with her mother in Australia while the father resides in the United States. Final parenting orders were made in February 2020, which provided for X to live with her mother and spend time with her father during school holidays. However, due to the COVID-19 pandemic, the father has not been able to spend time with X since 2019.

The legal issues in this case include whether the final parenting orders should be suspended, and if so, what interim arrangements should be put in place for the father to spend time with X. The court also needed to determine the appropriate amount of time the father should spend with X and whether X should be allowed to travel to the United States.

The court considered the evidence presented by both parties and the relevant legislation, including the Family Law Act 1975 (Cth) and the Family Law (Child Impact Reports) Rules 2021 (Cth). The court found that the final parenting orders should be suspended until further consideration of the proceedings, pending the outcome of the Rice v Asplund case. The court also ordered that the father should spend time with X in Australia during the September and December/January school holidays. In addition, the court ordered a Child Impact Report to be prepared to assess the impact of the arrangements on X and to inform the court's decision on whether to revisit the final parenting orders.

The final orders made by the court included the suspension of certain provisions of the final parenting orders, a schedule for the father to spend time with X during the upcoming school holidays, and the preparation of a Child Impact Report. Further consideration of the proceedings is adjourned pending the outcome of the Rice v Asplund case. Both parties are required to file and serve any further affidavits on which they intend to rely no later than 14 days prior to the adjourned hearing date.

The court's decision in this case highlights the importance of considering the best interests of the child when making interim parenting arrangements, particularly in cases where there are significant geographical distances between the parents. The court also emphasised the need for evidence to support claims of distress or risk of harm to the child.

Orders