CALLIHAN & CALLIHAN - [2020] FCCA 2034

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLIHAN & CALLIHAN [2020] FCCA 2034

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made – property adjustment – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.65Y, 106A, 81, 60CC, 60B, 60CA, 75, 79

Australian Passports Act 2005 (Cth)

Cases cited:

Betros & Betros [2017] FamCAFC 90

Lotta & Lotta [2017] FamCA 50

Applicant: MR CALLIHAN

Respondent: MS CALLIHAN

File Number: PAC 2106 of 2018

Judgment of: Judge Newbrun

Hearing dates: 11, 12 and 13 March 2020

Date of Last Submission: 16 April 2020

Delivered at: Parramatta

Delivered on: 30 July 2020
REPRESENTATION

Counsel for the Applicant: Mr Hill of Counsel

Solicitors for the Applicant: Gonzalez & Co

Counsel for the Respondent: Mr Reeves of Counsel

Solicitors for the Respondent: Mahony Family Lawyers

Solicitors for the Independent Children’s Lawyer Ms Raheem - Brian Samuel & Associates
ORDERS
Parenting
(1)That the Mother have sole parental responsibility for the children X born in 2014 and Y born in 2017 (“the children”).
(2)That the children live with the Mother.
(3)That the children spend time with the Father supervised by Suburb B Children’s Contact Service, or such other supervision service as agreed to by the parents in writing, for one period of 2 hours each 3 months.
(4)That the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children.
(5)That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
(6)It is noted that Order 1 vests in the Mother sole parental responsibly for the purposes of the Australian Passports Act 2005 (Cth) such that the Mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the Father.

Property
(7)That the Father shall, should he wish to retain the property situate at and known as C Street, Suburb D, NSW (“the property”), pay to the Mother within 8 weeks from the date of these Orders, the sum of $58,749.
(8)That simultaneously with Order 7, the parties do all acts and things and sign all necessary documents to discharge the mortgage in favour of E Bank (“the mortgage”) secured over the property and forthwith the Father shall refinance the mortgage into his sole name and shall indemnify and keep indemnified the Mother from any liability thereon.
(9)That should the Father fail to comply with Orders 7 and 8 above, then the parties shall forthwith do all things and sign all documents necessary to cause the property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be…

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 CALLIHAN & CALLIHAN

Details

AGLC: Callihan and Callihan [2020] FCCA 2034
Case: [2020] FCCA 2034
Decision Date: 30 July 2020

CaseChat Overview and Summary

In the matter of *Callihan & Callihan*, heard by Judge Newbrun, the dispute concerned parenting orders for two children, X (born 2014) and Y (born 2017), and a related property adjustment.

The court was required to determine the parenting arrangements for the children, specifically addressing issues of parental responsibility, residence, and the nature and frequency of the Father's contact with the children. The court also considered the Father's ability to communicate with the children on special occasions and the Mother's entitlement to travel with the children internationally.

The court ordered that the Mother have sole parental responsibility for the children and that they live with her. The Father's time with the children was significantly restricted, to be supervised by a contact service for a single two-hour period every three months. The Father was permitted to send gifts and correspondence to the children for special occasions. Furthermore, the Mother was authorised to remove the children from Australia at her discretion for travel purposes.

Orders

Orders of the court

Parenting

(1) That the Mother have sole parental responsibility for the children X born in 2014 and Y born in 2017 (“the children”).

(2) That the children live with the Mother.

(3) That the children spend time with the Father supervised by Suburb B Children’s Contact Service, or such other supervision service as agreed to by the parents in writing, for one period of 2 hours each 3 months.

(4) That the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children.

(5) That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.

(6)

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

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Ratio Decidendi

Legal Principle Established

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Solicitors for the Respondent:	Mahony Family Lawyers
Solicitors for the Independent Children’s Lawyer	Ms Raheem - Brian Samuel & Associates