BIRCHLER & MANIKAS - [2015] FamCA 986

FAMILY COURT OF AUSTRALIA

BIRCHLER & MANIKAS

[2015] FamCA 986

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where consent orders were made on the day of the hearing resolving in part the father’s application – Where the father’s time with the children during the school term and holiday periods as well as changeover arrangements were the only substantial issues outstanding – Where the co-parenting relationship is poor and communication between the parents occurs via text message or through solicitors – Where the Court finds the presumption of equal shared parental responsibility to have been rebutted – Consideration of s 60CC – Orders made – Appointment of Independent Children’s Lawyer – Parties to join in the appointment of a single expert witness.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Banks & Banks (2015) FLC 93-637
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Birchler

RESPONDENT:

Ms Manikas

FILE NUMBER:

SYC

7025

2014

DATE DELIVERED:

11 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

22 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Pigott Stinson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

Pending further Order, the Court orders that:

Subject to the Orders made on 22 September 2015, the children B born … 2008, C born on … 2009, and D born … 2011 (“the children”) shall live with the mother.
The children shall spend time with the father as agreed between the parties and failing agreement as follows:
a)         Each Wednesday from after school (or 3.30pm on non-school days) to           6.00pm; and
b)        Each weekend, on an alternating basis, as follows:
i)In week one, from after school on Friday (or from 3.30 pm on non-school days) to 6.00 pm on Saturday; and
ii)In week two, from after school on Friday (or 3.30pm on non-school days) to 6.00 pm on Sunday.
c)For the first half of the autumn, winter and spring school holidays,       commencing from 6.00 pm on the first Sunday after the end of the school term until 6.00 pm the following Sunday; and
d)During the summer school holidays, on an alternating week about basis as follows:
i)Commencing at 6.00 pm on the first Sunday of the holidays until 6.00 pm the following Sunday and each alternate week thereafter in odd numbered years; and
ii)Commencing at 6.00 pm on the second Sunday until 6.00 pm the following Sunday and each alternate week thereafter, in even numbered years.
Unless otherwise agreed between the parents, where changeover does not otherwise occur at the children’s day-care, pre-school or school:
a)The mother is to collect the children from the father’s residence at the commencement of her time with the children;
b)The father is to collect the children from the mother’s residence at the commencement of his time with the children; and
c)Provided that at least twenty-four (24) hours’ written notice is given to the other…

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 BIRCHLER & MANIKAS

Details

AGLC: BIRCHLER & MANIKAS [2015] FamCA 986
Case: [2015] FamCA 986
Decision Date: 11 November 2015

CaseChat Overview and Summary

In this matter before McClelland J, the proceedings concerned the living arrangements and time spent with three children, B, C, and D, born in 2008, 2009, and 2011 respectively. The dispute involved the parents' competing claims regarding the children's welfare and parental responsibilities.

The court was required to determine the primary residence of the children and the specific arrangements for the time they would spend with each parent. Additionally, the court needed to address the appointment of an Independent Children's Lawyer and the engagement of a single expert to report on various aspects of the parents' capacity and their ability to foster a relationship between the children and the other parent, as contemplated by section 60CC of the *Family Law Act 1975* (Cth).

McClelland J made orders that the children shall live with the mother, subject to existing orders. Detailed provisions were set out for the children to spend time with the father, including mid-week and alternating weekend arrangements, as well as specific provisions for school holidays. The court also ordered the appointment of an Independent Children's Lawyer, requesting representation from the Legal Aid Commission of NSW, and directed the parties to provide relevant documents to the Commission. Furthermore, the parents were ordered to jointly appoint a single expert to report on matters relevant to section 60CC of the *Family Law Act 1975* (Cth), with the Independent Children's Lawyer to nominate the expert if agreement could not be reached. The parties were to facilitate the expert's report and share the costs equally. All other orders sought by the parties were dismissed.

Orders

Orders of the court

Pending further Order, the Court orders that:

Subject to the Orders made on 22 September 2015, the children B born … 2008, C born on … 2009, and D born … 2011 (“the children”) shall live with the mother.

The children shall spend time with the father as agreed between the parties and failing agreement as follows:

a) Each Wednesday from after school (or 3.30pm on non-school days) to 6.00pm; and

b) Each weekend, on an alternating basis, as follows:

i) In week one, from after school on Friday (or from 3.30 pm on non-school days) to 6.00 pm on Saturday; and

ii) In week two, from after school on Friday (or 3.30pm on non-school days) to 6.00 pm on Sunday.

c) For the first half of the autumn, winter and spring school holidays, commencing from 6.00 pm on the first Sunday after the end of the school term until 6.00 pm the following Sunday; and

d) During the summer school holidays, on an alternating week about basis as follows:

i) Commencing at 6.00 pm on the first Sunday of the holidays until 6.00 pm the following Sunday and each alternate week thereafter in odd numbered years; and

ii) Commencing at 6.00 pm on the second Sunday until 6.00 pm the following Sunday and each alternate week thereafter, in even numbered years.

Unless otherwise agreed between the parents, where changeover does not otherwise occur at the children’s day-care, pre-school or school:

a) The mother is to collect the children from the father’s residence at the commencement of her time with the children;

b) The father is to collect the children from the mother’s residence at the commencement of his time with the children; and

c) Provided that at least twenty-four (24) hours’ written notice is given to the other parent, each of the parents is permitted to request that the other parent to collect the children from their place of work instead of their place of residence.

Pursuant to section 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET, within seven (7) days all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

The parents, in consultation with the Independent Children’s Lawyer, are to join in the appointment of a single expert, pursuant to Chapter 15 of the Family Law Rules 2004, to report on the matters referred to in section 60 CC of the Family Law Act 1975 and in particular the capacity of each of the parents to provide for the needs of the children including emotional and intellectual needs, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, the attitude to the children and responsibilities of parenthood demonstrated by each of the parents, and any other matter which the single expert or Independent Children’s lawyer think is relevant.

In the event the parties are unable to agree on the name of the single expert in accordance with Order (7) above, the Independent Children’s Lawyer is to nominate the single expert.

The parties are to do all things necessary, in consultation with the Independent Children’s Lawyer, to facilitate the preparation of a report by the single expert, including:

a) Attending on the single expert and arranging for the children to also attend; and

b) Providing copies of all relevant documents filed on their behalf in these proceedings to the single expert.

Each of the parties shall pay one half of the costs of the single expert.

10.

Otherwise, all orders sought in the Amended Application in a Case filed 11 June 2015 and the Response to an Application in a Case filed 1 June 2015 are 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.