ALLMAN & ALLMAN - [2019] FCCA 909

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLMAN & ALLMAN

[2019] FCCA 909

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – where the Children live with the Mother – time spent between the Children and the Father – whether the Children should spend overnight midweek time with the Father – distance between the parties – interim application dismissed pending further evidence.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 65DAA

Cases cited:

AMS v AIF (1999) 199 CLR 160

Eddington & Eddington (No 2) (2007) FLC 93-349
Goode v Goode (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (2010) 43 Fam LR 348
Ulster & Viney [2016] FamCAFC 133
U v U (2002) 211 CLR 238

Applicant:

MR ALLMAN

Respondent:

MS ALLMAN

File Number:

MLC 1730 of 2019

Judgment of:

Judge C.E. Kirton QC

Hearing date:

27 March 2019

Date of Last Submission:

27 March 2019

Delivered at:

Melbourne

Delivered on:

11 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Schmidt

Solicitors for the Applicant:

KCL Law

Counsel for the Respondent:

Mr Howe

Solicitors for the Respondent:

Peter Szabo Family Law

ORDERS

The Father's application for the interim Orders in paragraph 4.1 of the Initiating Application filed on 20 February 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1730 of 2019

MR ALLMAN

Applicant

and

MS ALLMAN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a decision in relation to interim parenting proceedings concerning two children, [X] ([X]), born … 2005 and [Y] ([Y]), born … 2012 (Children). The Applicant is the Father and the Respondent is the Mother of the Children.

Issues to be Determined

The parties have been unable to agree on the extent of time that the Father should spend with the Children during school term time, pending the final hearing of this proceeding. On 27 March 2019 interim consent orders were made ordering that the Children spend time and communicate with the Father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (Term Time Order).
The Father seeks the following interim order in lieu of the Term Time Order (Proposed Order):
The children live with the Father as follows:
a) during school term as follows:
i) In week 1, from the conclusion of school on Thursday (or 3:00pm on a non-school day) until the commencement of school on Friday (or 3:00pm on a non-school day); and
ii)In week 2, from the conclusion of school on Thursday (or 3:00pm on a non-school day) until the commencement of school on Monday (or 3:00pm on a non-school day)[1].
[1] Initiating Application, filed 20 February 2019, Interim Orders, at [4.1].
The Court has therefore been requested to determine whether the Term Time Order…

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 ALLMAN & ALLMAN

Details

AGLC: ALLMAN & ALLMAN [2019] FCCA 909
Case: [2019] FCCA 909
Decision Date: 11 April 2019

CaseChat Overview and Summary

In the matter of *Allman & Allman*, heard before Judge C.E. Kirton QC, the dispute concerned interim parenting orders. The children resided with the Mother, and the Father sought to vary the existing arrangements to include overnight midweek time with the children. The significant distance between the parties' residences was a key factor in the proceedings.

The central legal issue before the court was whether to grant the Father's application for interim orders that would increase his time with the children, specifically by introducing overnight midweek stays. This required the court to consider the best interests of the children in the context of the proposed change to their living arrangements and the practicalities arising from the geographical separation of the parents.

Judge Kirton QC dismissed the Father's application for interim orders. The court determined that insufficient evidence had been presented to justify altering the existing interim arrangements at that stage. The decision indicated that further evidence was required before a final determination could be made regarding the children's time with the Father. Consequently, the Father's application for the interim orders as sought in his initiating application was dismissed.

Orders

Orders of the court

The Father's application for the interim Orders in paragraph 4.1 of the Initiating Application filed on 20 February 2019 is dismissed.

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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