BELGER & DELBERT

Case [2020] FCCA 3203


FEDERAL CIRCUIT COURT OF AUSTRALIA

BELGER & DELBERT [2020] FCCA 3203
Catchwords:
FAMILY LAW – Parenting – best interests of the child – Orders made.

Legislation:

Family Law Act 1975 (Cth), s 60CC

Cases cited:

Knight & Knight [2016] FamCA 1085

Lansa & Clovelly [2010] FamCA 80

Applicant: MR BELGER
Respondent: MS DELBERT
File Number: PAC 5958 of 2017
Judgment of: Judge Newbrun
Hearing dates: 26 and 27 August 2020
Date of Last Submission: 27 August 2020
Delivered at: Parramatta
Delivered on: 24 November 2020

REPRESENTATION

The Applicant appeared in person
Counsel for the Respondent: Mr Simpson of Counsel
Counsel for the Independent Children’s Lawyer Ms Rebehy of Counsel
Solicitors for the Independent Children’s Lawyer Claremont Legal

ORDERS

  1. That all previous orders in relation to the child X born in 2011 (“X”) be discharged.

  2. That the Mother’s application to relocate the child’s residence from the B Region to the C Region area of Sydney be dismissed.

  3. That the parents have equal shared parental responsibility in relation to X.

  4. That X live with the Mother.

  5. That X spend time with the Father as follows:

    (a)Every second weekend from the conclusion of school Friday, or 3PM if Friday is a non-school day, until the commencement of school Tuesday, or 10 AM if Tuesday is a non-school day;

    (b)In the intervening week, from Monday after school, or 3 PM if Monday is a non-school day, to Tuesday before school, or 10 AM if Tuesday is a non-school day;

    (c)For one half of each school holiday period as agreed and failing agreement as follows;

    (i)For the first half in odd numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

    (ii)For the second half in even numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

    (d)From 9am Christmas Day to 2pm Christmas Day each year;

    (e)During New Year as agreed and failing agreement as follows;

    (i)From 9am New Year’s Eve until 9am New Year’s Day 2020/2021 and each alternate year thereafter;

    (ii)From 9am New Year’s Day until 9am 2 January 2021/2022 and each alternate year thereafter.

    (f)During Easter as agreed and failing agreement as follows;

    (i)From 2pm Easter Sunday to 5pm Easter Tuesday in even numbered years;

    (ii)From 2pm Easter Thursday to 2pm Easter Sunday in odd numbered years.

    (g)From 9am until 6pm on Father’s Day;

    (h)Telephone communication between 6pm and 7pm each Wednesday;

    (i)At any other times as agreed between the parents.

  6. That X’s time with the Father as otherwise provided shall be suspended as follows;

    (a)For one half of the school holiday period as agreed and failing agreement as follows;

    (i)For the first half in even numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

    (ii)For the second half in odd numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before…

Continue reading BELGER & DELBERT

Sign in free to access the full text

Details
AGLC
BELGER & DELBERT [2020] FCCA 3203
Case
[2020] FCCA 3203
Decision Date

CaseChat Overview and Summary

In the matter of BELGER & DELBERT, heard before Judge Newbrun, the dispute concerned parenting arrangements for a child, X, born in 2011. The mother sought to relocate X's residence from the B Region to the C Region area of Sydney, while the father opposed this relocation.

The court was required to determine whether to grant the mother's application for relocation and, consequently, what parenting orders were in the best interests of X. This involved considering the principles of equal shared parental responsibility and the specific living arrangements and time each parent would spend with X.

Judge Newbrun dismissed the mother's application to relocate X. The court ordered that all previous orders regarding X be discharged and that the parents have equal shared parental responsibility. X was ordered to live with the Mother, with specific provisions detailing the Father's time with X, including regular weekend and weekday time, half of each school holiday period, and specific arrangements for Christmas, New Year, and Easter. The court also made orders regarding communication between the parents, the suspension of certain time with the Father during specific periods, and prohibitions against denigrating each other or discussing proceedings in X's presence. The Independent Children's Lawyer was discharged, and their application for costs was dismissed.

Orders

Orders of the court

1.

That all previous orders in relation to the child X born in 2011 (“X”) be discharged.

2.

That the Mother’s application to relocate the child’s residence from the B Region to the C Region area of Sydney be dismissed.

3.

That the parents have equal shared parental responsibility in relation to X.

4.

That X live with the Mother.

5.

That X spend time with the Father as follows:

(a) Every second weekend from the conclusion of school Friday, or 3PM if Friday is a non-school day, until the commencement of school Tuesday, or 10 AM if Tuesday is a non-school day;

(b) In the intervening week, from Monday after school, or 3 PM if Monday is a non-school day, to Tuesday before school, or 10 AM if Tuesday is a non-school day;

(c) For one half of each school holiday period as agreed and failing agreement as follows;

(i) For the first half in odd numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

(ii) For the second half in even numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

(d) From 9am Christmas Day to 2pm Christmas Day each year;

(e) During New Year as agreed and failing agreement as follows;

(i) From 9am New Year’s Eve until 9am New Year’s Day 2020/2021 and each alternate year thereafter;

(ii) From 9am New Year’s Day until 9am 2 January 2021/2022 and each alternate year thereafter.

(f) During Easter as agreed and failing agreement as follows;

(i) From 2pm Easter Sunday to 5pm Easter Tuesday in even numbered years;

(ii) From 2pm Easter Thursday to 2pm Easter Sunday in odd numbered years.

(g) From 9am until 6pm on Father’s Day;

(h) Telephone communication between 6pm and 7pm each Wednesday;

(i) At any other times as agreed between the parents.

6.

That X’s time with the Father as otherwise provided shall be suspended as follows;

(a) For one half of the school holiday period as agreed and failing agreement as follows;

(i) For the first half in even numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

(ii) For the second half in odd numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

(b) From 9am Christmas Eve to 9am Christmas Day each year;

(c) During New Year as agreed and failing agreement as follows;

(i) From 9am New Year’s Eve until 9am New Year’s Day 2021/2022 and each alternate year thereafter;

(ii) From 9am New Year’s Day until 9am 2 January 2023/2024 and each alternate year thereafter.

(d) During Easter as agreed and failing agreement as follows;

(i) From 2pm Easter Sunday to 5pm Easter Tuesday in odd numbered years;

(ii) From 2pm Easter Thursday to 2pm Easter Sunday in even numbered years.

(e) From 9am until 6pm on Mother’s Day;

7.

For the purpose of changeovers, when changeovers are not occurring to and from school, the Mother shall deliver and collect X to and from the Father’s home at the commencement and conclusion of X’s time with the Father.

8.

That the Mother and Father refrain from denigrating each other, or allow others to do so, within X’s presence or hearing distance.

9.

That the Mother and Father refrain from discussing these proceedings within X’s presence or hearing distance.

10.

These orders serve as authority for X’s school to discuss with the Father X’s school attendance and progress, to furnish reports and copies of any correspondence, newsletters or written material produced by the school and distributed to parents and both of the parents are entitled to fully participate in all and any activities at the school or connected with the school.

11.

Each parent shall inform the other as soon as reasonably practicable of any serious injury or illness suffered by X whilst in that parent’s care and advise the other parent of any medical treatment X may require.

12.

The parents are to communicate with each other via SMS text message and/or email between the hours of 8am and 9.30pm. In the case of an emergency, notice shall be provided as soon as practicable upon the happening of the event.

13.

Each parent is to keep the other updated of any changes to his/her residential address, mobile telephone number and email address.

14.

That the Independent Children’s Lawyer be discharged.

15.

The ICL’s Application for Costs is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.