ANDALIS & ANDALIS - [2021] FCCA 207

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDALIS & ANDALIS

[2021] FCCA 207

Catchwords:
FAMILY LAW – Parenting – Interim application by the father for orders that children aged 13, 12, 10 and 4 return to live in City B – Mother proposing that the children continue to live with her on the Region C – family violence and parenting capacity issues alleged by the mother - father raising a concern about the children’s relationship with him being under threat if the children remained living eight hours from City B – order made for the children to return to City B and to live with the mother and spend time with the father if the mother returns and to live with the father and spend time with the mother if she does not return.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant:

MR ANDALIS

Respondent:

MS ANDALIS

File Number:

NCC 3980 of 2020

Judgment of:

Judge Terry

Hearing date:

25 January 2021

Date of Last Submission:

25 January 2021

Delivered at:

Newcastle

Delivered on:

29 January 2021

REPRESENTATION

Solicitors for the Applicant:

Delaney Roberts Family Lawyers

Counsel for the Respondent:

Mr Battley

Solicitors for the Respondent:

Dillon Smith Lawyers

ORDERS

The parties shall have equal shared parental responsibility for the children W born in 2007, X born in 2007, Y born in 2010 and Z born in 2016 (“the children”).
Within 7 days of the date of these orders the mother shall cause the residence of the children to be relocated back to the City B area.
If the mother returns to City B then the children shall live with the mother and spend time with the father as agreed between the mother and the father but failing agreement as follows:
(a)Each alternate weekend from 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Monday;
(b)During the school holiday periods at the conclusion of Terms 1, 2 and 3 from 3:00pm or the conclusion of school on the last day that the children are required to attend school until 3:00pm on the second Saturday of the school holiday period.
(c)During the school holiday period at the conclusion of Term 4, in odd numbered years commencing in 2021 from 3.00pm on the first day of the school holidays until 3:00pm on 7 January.;
(d)During the school holiday period at the conclusion of Term 4, in even numbered years commencing in 2022 from 3:00pm on 7 January until 9am or the commencement of school on the first day of the school term.
(e)For the purpose of facilitating Orders 3(a) to (d) the parents shall meet at City B Park at the commencement and conclusion of time.
If the mother does not return to the City B then the children shall live with the father and spend time and communicate with the mother as agreed between the mother and the father but failing agreement as follows:
(a)On…

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 ANDALIS & ANDALIS

Details

AGLC: ANDALIS & ANDALIS [2021] FCCA 207
Case: [2021] FCCA 207
Decision Date: 29 January 2021

CaseChat Overview and Summary

This matter concerned the parental responsibility and living arrangements for four children, W, X, Y, and Z, born between 2007 and 2016. The dispute arose between the mother and the father regarding where the children should reside and the specific arrangements for their time with each parent. The decision was made by Judge Terry.

The court was required to determine the most appropriate orders for shared parental responsibility, the primary residence of the children, and the time each parent would spend with them. This involved considering the relocation of the children and establishing detailed schedules for school holidays and weekends, as well as imposing specific restrictions on the father's conduct while the children are in his care.

Judge Terry ordered that the parties have equal shared parental responsibility for the children. The mother was directed to relocate the children's residence back to the City B area within seven days. If the mother complied with this relocation, the children would live with her, with specific arrangements for time with the father, including alternate weekends and defined periods during school holidays. If the mother did not return to City B, the children would live with the father, with alternative arrangements for time with the mother, including monthly weekends and half of all NSW school holidays, along with regular communication. Furthermore, pursuant to section 68B of the Family Law Act, the father was restrained from consuming alcohol while the children were in his care and from operating any firearm while the children were in his care. The father was also bound by an undertaking not to recover his firearms from NSW Police. The matter was adjourned for further consideration.

Orders

Orders of the court

The parties shall have equal shared parental responsibility for the children W born in 2007, X born in 2007, Y born in 2010 and Z born in 2016 (“the children”).

Within 7 days of the date of these orders the mother shall cause the residence of the children to be relocated back to the City B area.

If the mother returns to City B then the children shall live with the mother and spend time with the father as agreed between the mother and the father but failing agreement as follows:

(a) Each alternate weekend from 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Monday;

(b) During the school holiday periods at the conclusion of Terms 1, 2 and 3 from 3:00pm or the conclusion of school on the last day that the children are required to attend school until 3:00pm on the second Saturday of the school holiday period.

(c) During the school holiday period at the conclusion of Term 4, in odd numbered years commencing in 2021 from 3.00pm on the first day of the school holidays until 3:00pm on 7 January.;

(d) During the school holiday period at the conclusion of Term 4, in even numbered years commencing in 2022 from 3:00pm on 7 January until 9am or the commencement of school on the first day of the school term.

(e) For the purpose of facilitating Orders 3(a) to (d) the parents shall meet at City B Park at the commencement and conclusion of time.

If the mother does not return to the City B then the children shall live with the father and spend time and communicate with the mother as agreed between the mother and the father but failing agreement as follows:

(a) On weekends when there is a public holiday or one weekend per month, in Sydney.

(b) For one half of all NSW school holiday periods in a week about arrangement.

Pursuant to section 68B of the Family Law Act the father is hereby restrained from:

(a) Consuming alcohol during any time that the children are in his care pursuant to these Orders.

(b) Operating any firearm whilst ever the children are in the care of the father.

The father shall continue to be bound by the undertaking that is presently filed with the court that he not recover his firearms from NSW Police.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The matter is adjourned to 9.30am on 11 March 2021 for further consideration.

Each of the parties and legal representatives have liberty to attend by telephone on 11 March 2021 by dialling in using the following details:

(a) Phone: ... Australia, Sydney (Toll)

(b) Conference ID: ...

If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves.

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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