Conway & Short - [2022] FedCFamC2F 72

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conway & Short [2022] FedCFamC2F 72

File number(s): ADC 5333 of 2019

Judgment of: JUDGE DICKSON

Date of judgment: 1 February 2022

Catchwords: FAMILY LAW – Parenting – two children aged 8 and 10 years – where parties have been separated since 2012 – where father has worked on a fly-in/fly-out roster on a 28 day on/off roster since 2013 – where father’s time spending with the children has occurred in Adelaide during his 28 days off – where father seeks to increase his time with the children – where mother alleges father has a history of issues with alcohol consumption – where mother alleges that father’s behaviour towards her has been abusive – where there have been communication issues between the parties – where the mother has a lack of confidence in the father’s ability to be emotionally attuned to the children - where issues to be determined at Trial were relatively narrow – where Family Consultant’s recommendations at Trial varied from those given in the Family Report – where the children want to spend more time with their father – where the father’s proposal for school holiday time involves a ‘complex calculation’ – where any orders made should be simplified – where the children’s time with their father should be maximised whilst he is present in Adelaide whilst balancing the children’s relationship with the mother and their half siblings.

Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode (2006) FLC 93-286

Jurchenko & Foster [2014] FamCAFC 127
Mazorski & Albright [2007] FamCA 520

Division: Division 2 Family Law

Number of paragraphs: 146

Date of hearing: 16 – 18 November 2021

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Andersons Solicitors

Counsel for the Respondent: Mr Childs

Solicitor for the Respondent: VP Lawyers
ORDERS

ADC 5333 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CONWAY

Applicant

AND:
MS SHORT

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

1 FEBRUARY 2022

BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children X born in 2011 and Y born in 2013 (‘the children’).
3.The children live with the mother at all times that the father is rostered on at work.
4.In the event that Mother’s Day falls during a period when the children are in the care of the father, the children spend time with the mother from 10.00am until 6.00pm on Mother’s Day.
5.In the event that Father’s Day falls during a period that the father is rostered off work and the children are in the care of the mother the children spend time with the father from 10.00am until 6.00pm on Father’s Day.
6.In the event that the children’s siblings (B and C) birthday(s) fall during a period that the children are in the care of the father, that…

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 Conway & Short

Details

AGLC: Conway & Short [2022] FedCFamC2F 72
Case: [2022] FedCFamC2F 72
Decision Date

CaseChat Overview and Summary

This case concerns parenting applications in relation to future arrangements for two children. The Court was required to decide upon the father's time with the children during his rostered 28-day period off in Adelaide, the father's time with the children during school holidays, the parties' alternating arrangements for Christmas Day, the father's proposal for school holiday time, the parties' communication with the children when they are not in their care, and the parties' obligations to communicate with the other parent. The court considered the best interests of the children as the paramount consideration, and found that the father's time with the children should be maximised while he was present in Adelaide while balancing the children's relationship with the mother and their half siblings. The court ordered that the parties have equal shared parental responsibility for the children, and made detailed orders regarding the children's time with each parent, communication between the parties, and the children's contact with their father while he was away.

Orders