Dalley and Dalley - [2015] FCCA 3459

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLEY & DALLEY

[2015] FCCA 3459

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MS DALLEY

Respondent:

MR DALLEY

File Number:

SYC 4420 of 2011

Judgment of:

Judge Scarlett

Hearing date:

21 December 2015

Date of Last Submission:

21 December 2015

Delivered at:

Sydney

Delivered on:

21 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Ryan (direct brief)

Solicitor for the Respondent:

Mr McCann

Solicitors for the Respondent:

Anderson Lawyers

ORDERS

UNTIL FURTHER ORDER

The Applicant and the Respondent are to have equal shared parental; responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004.
The children X and Y are to live with the Mother.
The children X and Y are to spend time with the Father each Sunday from 9:00am to 5:00pm commencing on Sunday 10 January 2016.
Changeover where the children go from the care of one parent to the care of the other parent is to be effected by the Mother delivering the children to the father at (omitted) Railway Station at the commencement of the Father’s time with the children and collecting the children from the Father at (omitted) Railway Station at the conclusion of the time.
The Father is restrained by injunction from driving the children in a motor vehicle at any time when they are in his care.
The Application is adjourned to 15 February 2016 for further mention.

IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4420 of 2011

MS DALLEY

Applicant

And

MR DALLEY

Respondent

REASONS FOR JUDGMENT

By his Amended Response, the father is seeking parenting orders, in respect of the parties’ two younger children, a girl and a boy.
There are as yet, apart from some short consent orders, no other parenting orders in force between the parties. They have two children under the age of 18. There are older children who are not relevant to the Application before the Court today, but the younger children are X, who was born on (omitted) 2003, and Y who was born on (omitted) 2004. The children live with their mother and have done so since the parties separated.
The Father, by his Amended Response filed on 16^th October, has sought interim parenting orders relating to the two children, including orders that the parties should have equal shared parental responsibility for the children, they should live with their mother, spend time with him each Sunday from 9:00am until 6:00pm, and there should be orders about telephone communication. He also seeks that the children should spend separate days per week with him during school holidays.
There are other orders which the Father has now sought to amend his earlier Application which…

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 Dalley and Dalley

Details

AGLC: Dalley and Dalley [2015] FCCA 3459
Case: [2015] FCCA 3459
Decision Date: 21 December 2015

CaseChat Overview and Summary

In the matter of *Dalley and Dalley*, heard by Judge Scarlett, the dispute concerned parenting arrangements for two children, X and Y. The orders indicate that the parents, the Applicant and the Respondent, sought to establish a framework for the children's living arrangements, time spent with each parent, and parental responsibility.

The court was required to determine the most appropriate parenting orders, considering the children's best interests. Specifically, the court had to decide on the nature of parental responsibility, where the children would primarily live, the extent of time they would spend with the non-resident parent, and the practical arrangements for the transfer of the children between parents. A significant issue was the imposition of an injunction restraining the Father from driving the children.

Judge Scarlett made orders for equal shared parental responsibility, reflecting a presumption in favour of both parents being actively involved in the children's lives. The children were ordered to live with the Mother, and the Father was granted specific time with them each Sunday. Crucially, an injunction was granted restraining the Father from driving the children, indicating a serious concern regarding his ability to do so safely. The matter was adjourned for further mention, suggesting that the court may revisit or refine these orders.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant and the Respondent are to have equal shared parental; responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004.

The children X and Y are to live with the Mother.

The children X and Y are to spend time with the Father each Sunday from 9:00am to 5:00pm commencing on Sunday 10 January 2016.

Changeover where the children go from the care of one parent to the care of the other parent is to be effected by the Mother delivering the children to the father at (omitted) Railway Station at the commencement of the Father’s time with the children and collecting the children from the Father at (omitted) Railway Station at the conclusion of the time.

The Father is restrained by injunction from driving the children in a motor vehicle at any time when they are in his care.

The Application is adjourned to 15 February 2016 for further mention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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