Trieste and Nettles (No 2) - [2017] FamCA 577

FAMILY COURT OF AUSTRALIA

TRIESTE & NETTLES (NO 2)

[2017] FamCA 577

FAMILY LAW – CHILDREN – Parenting Orders – where family violence found to be significant – where relationship was short and mother gave birth to twins – where violence brought relationship to an end when children were 7 months old and have had no contact with father since – where father fails to file material evidence notwithstanding being given an opportunity to do so - where mother is from New Zealand and desires to return there. Where no proposals by father and no challenge to mother’s evidence – orders made.

Family Law Act 1977 (Cth)

APPLICANT:

Ms Trieste

RESPONDENT:

Mr Nettles

INDEPENDENT CHILDREN’S LAWYER:

Ms Ebejer

FILE NUMBER:

MLC

4342

2016

DATE DELIVERED:

31 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

31 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkinson

SOLICITOR FOR THE APPLICANT:

Trapski Family Law

THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Ebejer, Ebejer & Associates

Orders

All existing parenting orders are discharged.
The mother of D and E, both born … 2015, has sole parental responsibility for all major long-term decision relating to the children and, specifically, is at liberty to seek an Australian passport without further reference to or involvement by the father.
The children forthwith live with the mother.
Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take both children from the Commonwealth of Australia to travel with them internationally.
The mother has permission to have the children live with her in New Zealand.
By injunction, the father is restrained from having any time with or communication with the children, save for the purposes of sending gifts to a nominated address by the mother.
The appointment for the independent children’s lawyer is forthwith discharged.
The application of the mother filed on 16 May 2016 is dismissed and the response of the father filed 31 May 2016 is also dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trieste & Nettles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4342 of 2016

Ms Trieste

Applicant

And

Mr Nettles

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

In these proceedings, Ms Trieste is the applicant. She is the mother of a number of children but her present application is about twins D and E, aged two. Mr Nettles is the father of the twins…

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 Trieste and Nettles (No 2)

Details

AGLC: Trieste and Nettles (No 2) [2017] FamCA 577
Case: [2017] FamCA 577
Decision Date: 31 July 2017

CaseChat Overview and Summary

In *Trieste and Nettles (No 2)*, the Federal Circuit and Family Court of Australia considered parenting orders concerning two children, D and E, born in 2015. The dispute involved the mother's application for sole parental responsibility and permission to relocate the children to New Zealand, and the father's response.

The court was required to determine whether to discharge existing parenting orders and, if so, what new orders should be made regarding the children's living arrangements, parental responsibility for long-term decisions, international travel, and communication between the children and the father. The court also considered the role of an independent children's lawyer and the disposition of the parties' respective applications.

Cronin J discharged all existing parenting orders. The mother was granted sole parental responsibility for all major long-term decisions concerning the children, including the liberty to seek an Australian passport without further reference to the father. The children were ordered to live with the mother forthwith. Pursuant to section 65Y(2) of the *Family Law Act 1975* (Cth), the mother was granted permission to take the children from Australia to travel internationally and to have them live with her in New Zealand. The father was restrained by injunction from having any time with or communication with the children, except for sending gifts to an address nominated by the mother. The appointment of the independent children's lawyer was discharged, and both the mother's application filed on 16 May 2016 and the father's response filed on 31 May 2016 were dismissed.

Orders

Orders of the court

All existing parenting orders are discharged.

The mother of D and E, both born … 2015, has sole parental responsibility for all major long-term decision relating to the children and, specifically, is at liberty to seek an Australian passport without further reference to or involvement by the father.

The children forthwith live with the mother.

Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take both children from the Commonwealth of Australia to travel with them internationally.

The mother has permission to have the children live with her in New Zealand.

By injunction, the father is restrained from having any time with or communication with the children, save for the purposes of sending gifts to a nominated address by the mother.

The appointment for the independent children’s lawyer is forthwith discharged.

The application of the mother filed on 16 May 2016 is dismissed and the response of the father filed 31 May 2016 is also dismissed.

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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