ATTAWAY & BALLOCH - [2019] FCCA 2626

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTAWAY & BALLOCH

[2019] FCCA 2626

Catchwords:
FAMILY LAW – Interim parenting – three children – two children living with father and one child living with the mother since 2017 – mother retains child – separation of siblings – allegations of family violence – youngest child to return to live with father in Town A and spend time with the mother in B Region.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Applicant:

MS ATTAWAY

Respondent:

MR BALLOCH

File Number:

NCC 1081 of 2019

Judgment of:

Judge Costigan

Hearing date:

28 June 2019

Date of Last Submission:

28 June 2019

Delivered at:

Newcastle

Delivered on:

17 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr Bates

Solicitors for the Applicant:

Derham Houston Lawyers

Solicitors for the Respondent:

Mr Haricharan (Agent) Mastronardi Legal Pty Ltd

ORDERS

PENDING FURTHER ORDER:

That the Mother return the child [X] born … November 2011 (‘[X]’) to the Father’s care by 3.00pm on Sunday 6 October 2019.
The Father be at liberty to re-enrol the child [X] at Town A Public School for the commencement of Term 4.
That the children [Z] born … 2005 (‘[Z]’) and [X] born … 2011 (‘[X]’) live with the Father.
That the children [Z] and [X] spend time with the Mother:
(a)For half of the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the Mother have the first half in odd years (including Christmas) and the second half in even years;
(b)In relation to the child [X] on the third weekend of each month from 11am Saturday to 3pm Sunday; and
(c)As otherwise agreed between the parties.
The ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of nights and the ‘second half’ of the school holiday periods shall commence at 12 noon on the day closest to the midpoint having regard to the total number of nights and shall conclude at 12 noon on the day before the first day of required attendance in the new term.
The Mother have telephone communication with the children [Z] and [X] each Tuesday and Thursday between 7.00pm and 7.30pm.
That the child [Y] born … 2003 (‘[Y]’) live with the Mother.
That the child [Y] spend time with the Father as follows:
(a)For half the gazetted school holiday period with the parties to agree on which half and in the absence of agreement, the Father have the second half in odd years and the first half in even years (including Christmas).
(b)As otherwise agreed between the parties.
That the Father have telephone communication with the child [Y] each Tuesday and Thursday between 7.00pm and 7.30pm.

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 ATTAWAY & BALLOCH

Details

AGLC: Attaway and Balloch [2019] FCCA 2626
Case: [2019] FCCA 2626
Decision Date: 17 September 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Costigan considered interim parenting orders concerning three children. The dispute arose following the separation of the parents, with two children having lived with the father and one with the mother since 2017. The mother retained one child, leading to the separation of siblings. Allegations of family violence were also before the court.

The court was required to determine interim arrangements for the children, specifically addressing where each child would live and spend time, and to consider the impact of the separation of siblings. The court also had to consider the allegations of family violence in its determination of the children's best interests.

Applying the principles of the *Family Law Act 1975*, the court made orders for the children to live with the father, with specific time arrangements for the mother, and for one child to live with the mother with time arrangements for the father. The orders included provisions for school holidays, regular weekend time, and telephone communication. The court also made orders restraining both parties from using illicit substances, communicating with each other through the children, denigrating the other party in the children's presence, and discussing court proceedings with the children. A family report was ordered to assess various factors relevant to the children's welfare, including the children's developmental and emotional state, their relationships with each party, and the proposed future living environments. The matter was adjourned for a directions hearing.

Orders

Orders of the court

PENDING FURTHER ORDER:

That the Mother return the child [X] born … November 2011 (‘[X]’) to the Father’s care by 3.00pm on Sunday 6 October 2019.

The Father be at liberty to re-enrol the child [X] at Town A Public School for the commencement of Term 4.

That the children [Z] born … 2005 (‘[Z]’) and [X] born … 2011 (‘[X]’) live with the Father.

That the children [Z] and [X] spend time with the Mother:

(a) For half of the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the Mother have the first half in odd years (including Christmas) and the second half in even years;

(b) In relation to the child [X] on the third weekend of each month from 11am Saturday to 3pm Sunday; and

The ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of nights and the ‘second half’ of the school holiday periods shall commence at 12 noon on the day closest to the midpoint having regard to the total number of nights and shall conclude at 12 noon on the day before the first day of required attendance in the new term.

The Mother have telephone communication with the children [Z] and [X] each Tuesday and Thursday between 7.00pm and 7.30pm.

That the child [Y] born … 2003 (‘[Y]’) live with the Mother.

That the child [Y] spend time with the Father as follows:

(a) For half the gazetted school holiday period with the parties to agree on which half and in the absence of agreement, the Father have the second half in odd years and the first half in even years (including Christmas).

(b) As otherwise agreed between the parties.

That the Father have telephone communication with the child [Y] each Tuesday and Thursday between 7.00pm and 7.30pm.

10.

That changeover take place at the Location C.

11.

That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and addresses.

12.

That each party keep the other informed of the children’s health and any health issues as well as procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the cases of emergency (with the party in whose care the children are in to inform the other party as soon as possible).

13.

That the parties and each of them be restrained from:

(a) Using illicit substances 12 hours prior to or during any period that the children or any of them are in their care.

(b) Communicating with the other party about the children’s care welfare development or any changes to the arrangements for the children’s care through the children.

(d) Discussing the Court proceedings with the children.

14.

That both parties be permitted to receive school notices, information, newsletter, school reports, school photographs and to attend all school functions to which parents are normally invited.

15.

Within seven days the father file a copy of the child [Z]’s birth certificate.

16.

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

(a) to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act 1975;

(b) to profile of the parties

(d) to assess the children’s developmental and emotional state;

(e) to assess the relationship of the children to the parties and other significant persons in the children’s household;

(f) to ascertain the wishes of the children’s unless inappropriate by reason of age or other special circumstance;

(g) to assess the proposed and actual home environments; and

(h) to assess the proposals of each party as to the children’s future.

17.

The Court requests the said report be released by 5 February 2020.

18.

Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

19.

If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

20.

The matter is adjourned to 17 February 2020 at 9.30am for a directions hearing in the Federal Circuit Court sittings at Newcastle.

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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