Cales & Cales - [2009] FamCA 7

FAMILY COURT OF AUSTRALIA

CALES & CALES

[2009] FamCA 7

FAMILY LAW – CHILDREN – With whom children live – Relocation

APPLICANT:

Ms Cales

RESPONDENT:

Mr Cales

FILE NUMBER:

NCF

358

2006

DATE DELIVERED:

12 January 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Kinnear & Company

COUNSEL FOR THE RESPONDENT:

Mr Serisier

SOLICITOR FOR THE RESPONDENT:

Connah Steed & Co Solicitors

Orders

That the parties have equal shared parental responsibility for J born … March 2002 and E born … October 2003.
That the said children shall reside with the husband:
a.from 6pm on Friday to 6pm on Sunday or on a long weekend 6pm on Monday on each alternative weekend during the children’s school term;
b.for the first half of all the children’s school holidays which commence in an odd numbered year with the first half to commence on the breakup of school on the last day of the school term and end at 6pm on the last day of the first half of the immediately following school holiday period;
c.for the second half of all the children’s school holidays which commence in an even numbered year with the second half to commence at 6pm on the last day of the first half of the school holiday period and end at the commencement of the first day of school in the immediately following school term;
d.during each school term from the commencement of school on each Wednesday until 7pm that day;
e.each Father’s Day from 6pm on the Saturday immediately preceding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the husband;
f.on the husband’s birthday each year:
i.if it falls on a school day when the children would otherwise reside with the wife from immediately after school on … March to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the husband; or,
ii.if it falls on a school holiday or a non school day when the children would otherwise reside with the wife from 6pm on the preceding day to 7pm on the father’s birthday.
g.From 6pm on Christmas day to 6pm on Boxing day in each even numbered year commencing in 2010.
That the children shall have telephone contact with the husband
a.once on each weekend during school term when they are residing with the wife at a time or times of the children’s choosing or by agreement or if there has been no such contact by 6pm on Sunday then at 6pm that day for not less than 5 minutes and not more than 10 minutes per child;
b.once during the weekdays when the children are residing with the wife during each week…

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 Cales & Cales

Details

AGLC: Cales & Cales [2009] FamCA 7
Case: [2009] FamCA 7
Decision Date: 12 January 2009

CaseChat Overview and Summary

This matter concerned an application by the husband and wife regarding parenting orders for their two children, J and E. The court was required to determine the specific arrangements for the children's residence, contact with each parent, and related matters.

The primary legal issues before the court were the establishment of equal shared parental responsibility for the children, the determination of the children's primary residence, and the detailed allocation of time between the parents, including specific provisions for school holidays, birthdays, and other significant dates. The court also had to consider the facilitation of telephone contact between the children and the non-resident parent, and the prevention of any obstruction or interference with such contact. Furthermore, the court addressed the wife's ability to relocate with the children and the husband's responsibilities regarding collection and delivery.

Cohen J ordered that the parties have equal shared parental responsibility for J and E. The children were to reside with the husband on alternative weekends, for specific halves of school holidays depending on whether the year was odd or even, and for a portion of each Wednesday during school terms. The orders also detailed specific arrangements for Father's Day, the husband's birthday, and Christmas Day in even-numbered years. The wife was ordered to facilitate telephone contact with the husband and was restrained from obstructing it, with similar provisions made for the husband to facilitate contact with the wife. The wife was also restrained from moving the children's home more than 30km from the Sydney GPO. The children were to reside with the wife at all other times, subject to specific provisions for Mother's Day, the wife's birthday, and Christmas Day in odd-numbered years. The husband was responsible for collecting and delivering the children for his periods of residence.

Orders

Orders of the court

That the parties have equal shared parental responsibility for J born … March 2002 and E born … October 2003.

That the said children shall reside with the husband:

a. from 6pm on Friday to 6pm on Sunday or on a long weekend 6pm on Monday on each alternative weekend during the children’s school term;

b. for the first half of all the children’s school holidays which commence in an odd numbered year with the first half to commence on the breakup of school on the last day of the school term and end at 6pm on the last day of the first half of the immediately following school holiday period;

c. for the second half of all the children’s school holidays which commence in an even numbered year with the second half to commence at 6pm on the last day of the first half of the school holiday period and end at the commencement of the first day of school in the immediately following school term;

d. during each school term from the commencement of school on each Wednesday until 7pm that day;

e. each Father’s Day from 6pm on the Saturday immediately preceding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the husband;

f. on the husband’s birthday each year:

i. if it falls on a school day when the children would otherwise reside with the wife from immediately after school on … March to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the husband; or,

ii. if it falls on a school holiday or a non school day when the children would otherwise reside with the wife from 6pm on the preceding day to 7pm on the father’s birthday.

g. From 6pm on Christmas day to 6pm on Boxing day in each even numbered year commencing in 2010.

That the children shall have telephone contact with the husband

a. once on each weekend during school term when they are residing with the wife at a time or times of the children’s choosing or by agreement or if there has been no such contact by 6pm on Sunday then at 6pm that day for not less than 5 minutes and not more than 10 minutes per child;

b. once during the weekdays when the children are residing with the wife during each week of the school term at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each Thursday then at 6pm on each Thursday for not less than 5 minutes and more than 10 minutes per child;

c. once in each cycle of two days when the children are residing with the wife during each school holiday period at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each second day of such cycles than at 6pm on the second day of each such cycle for not less than 5 minutes and not more than 10 minutes per child; and,

d. once before 8.30am on each child’s birthday which falls when the children are residing with the wife for not less than 5 minutes and more than 10 minutes per child.

That the wife shall do all things necessary to facilitate the telephone contact required by order 3. and ensure it occurs and is hereby restrained from doing anything to obstruct or interfere with such contact and shall not permit the children to have distractions such as but not limited to television, computer games and extracurricular activities at times when such contact is due or taking place and shall at all times keep the husband informed of the most immediate telephone number by which the children can be contacted and shall not listen to nor allow any other person to listen to conversations between the husband and either child.

That for the purposes of implementing order 2. the husband or his agent shall collect or deliver the children when residence with him is due to commence or end and in the event that such collection or delivery is not to be at the children’s school or schools it shall be to or from the wife or her agent at the front door of the wife’s home.

That the wife is hereby restrained from moving the children’s home when they are living with her to any place outside the circumference of the area within a radius of 30km from the Sydney GPO.

That the said children shall reside with the wife:

a. at all times other than those provided for in order 2. herein for so long as she resides within the area provided for by order 6. herein; and,

b. notwithstanding any general provision to the contrary in order 2. herein

i. each Mother’s Day from 6pm on the Saturday immediately proceeding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the wife;

ii. on the wife’s birthday each year if:

1. if falls on a school day when the children would otherwise reside with the husband from immediately after school on … September to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the wife; or,

2. if it falls on a school holiday or non school day when the children would otherwise reside with the husband from 6pm on the preceding day to 7pm on the mother’s birthday; and,

c. from 6pm on Christmas Day to 6pm on Boxing Day in each odd numbered year.

That the children shall have telephone contact with the wife

a. once on each weekend during school term when they are residing with the husband at a time or times of the children’s choosing or by agreement or if there has been no such contact by 6pm on Saturday then at 6pm that day for not less than 5 minutes and not more than 10 minutes per child;

b. once in each cycle of two days when the children are residing with the husband during each school holiday period at a time or times of the children’s choosing or by agreement and if there has been no such contact by 6pm on each second day of such cycles than at 6pm on the second day of each such cycle for not less than 5 minutes and not more than 10 minutes per child; and,

c. once before 8.30am on each child’s birthday which falls when the children are residing with the husband for not less than 5 minutes and more than 10 minutes per child.

That the husband shall do all things necessary to facilitate the telephone contact required by order 8. and ensure it occurs and is hereby restrained from doing anything to obstruct or interfere with such contact and shall not permit the children to have distractions such as but not limited to television, computer games and extracurricular activities at times when such contact is due or taking place and shall at all times keep the wife informed of the most immediate telephone number by which the children can be contacted and shall not listen to nor allow any other person to listen to conversations between the wife and either child.

10.

That publication of the reasons for judgment herein is reserved to 10am 12 January 2009.

11.

That the time for lodging an appeal is extended to one month from 12 January 2009.

12.

That costs are reserved for one month from 12 January 2009.

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.