Dalley and Dalley (No.4) - [2016] FCCA 1370

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLEY & DALLEY (No.4)

[2016] FCCA 1370

Catchwords:
FAMILY LAW – Children – Contravention – contravention of parenting orders – interim orders – views of the children considered – where children are reluctant to spend time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 68LA, 70NBA, 70NEA, 70NEB

Cases cited:

Dalley & Dalley [2015] FCCA 3459

Dalley & Dalley (No.3) [2016] FCCA 959

Applicant:

MR DALLEY

Respondent:

MS DALLEY

File Number:

SYC 4420 of 2011

Judgment of:

Judge Scarlett

Hearing date:

17 May 2016

Date of Last Submission:

17 May 2016

Delivered at:

Sydney

Delivered on:

7 June 2016

REPRESENTATION

Solicitor for the Applicant:

Mr McCann

Solicitors for the Applicant:

Anderson Lawyers

Counsel for the Respondent:

Mr Ryan (direct brief)

Independent Children's Lawyer:	Mr Bell
Solicitors for the Independent Children's Lawyer:	Stephen William Bell

ORDERS

UNTIL FURTHER ORDER

All earlier parenting Orders are suspended.
The children X born (omitted) 2003 and Y born (omitted) 2004 are to spend time with the Father from 9:00 am to 5:00 pm as follows:
(a)On Boxing Day 26 December in each year;
(b)On Easter Monday in each year;
(c)On Sunday 26 June 2016;
(d)On the Sunday immediately prior to the Father’s birthday in 2017 and subsequent years;
(e)On Sunday 17 July 2016;
(f)On Sunday 16 July 2017;
(g)On Sunday 20 November 2016;
(h)On Sunday 19 November 2017;
(i)On Father’s day in each year; and
(j)At such other times as the parties may agree.
If either of the children expresses a wish not to spend time with the Father on a day prescribed by these Orders then the Mother must inform the Father fourteen (14) days beforehand.
The Father is restrained by injunction from using abusive or offensive language to or in the presence or hearing of either of the children.
The Father is permitted to send the children Christmas cards and gifts and birthday cards and gifts.
Each parent is permitted to communicate directly with either of the children’s schools, sporting bodies and medical practitioners to obtain any necessary information or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
The Father is permitted to obtain copies of the children’s school reports from the children’s respective schools together with copies of school bulletins, newsletters, information about school photographs and other information normally provided to parents of children attending the particular school.
Each parent must keep the other parent advised of the health of the children or either of them including serious illness, medication or hospitalisation of the children or either of them as soon as is reasonably practicable.
In accordance with the provisions of section 62G of the Family Law Act 1975 the parties and the children are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services for the purpose of interviews to prepare a Family Report on matters concerning the care, welfare and development of the children…

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 (No.4)

Details

AGLC: Dalley and Dalley (No.4) [2016] FCCA 1370
Case: [2016] FCCA 1370
Decision Date: 7 June 2016

CaseChat Overview and Summary

This matter came before Judge Scarlett concerning parenting orders for the children X and Y. The dispute involved the terms of time spent by the children with their father, communication with schools and medical practitioners, and the father's conduct towards the children.

The court was required to determine the specific arrangements for the children's time with the father, including the suspension of previous orders and the establishment of new, defined periods. Further issues included the father's right to receive school reports and other information, the parents' obligation to inform each other of the children's health, and the father's conduct in the presence of the children. The court also considered the need for a Family Report and the procedural steps for future hearings.

Judge Scarlett ordered the suspension of all earlier parenting orders. New orders were made for the children to spend specific periods with the father, including Boxing Day, Easter Monday, and various Sundays throughout 2016 and 2017, as well as Father's Day annually. A provision was included allowing the children to express a wish not to spend time with the father, requiring the mother to provide advance notice. The father was restrained by injunction from using abusive or offensive language towards the children. Both parents were permitted to communicate with the children's schools, sporting bodies, and medical practitioners, and the father was granted access to school reports. The court mandated attendance upon a Family Consultant for the preparation of a Family Report, pursuant to section 62G of the *Family Law Act 1975*. The mother was ordered to file an application to discharge, vary, or suspend the primary order within twenty-eight days.

The substantive application was transferred to Judge Boyle and listed for a final hearing date to be set. Each party was ordered to pay their own costs.

Orders

Orders of the court

UNTIL FURTHER ORDER

All earlier parenting Orders are suspended.

The children X born (omitted) 2003 and Y born (omitted) 2004 are to spend time with the Father from 9:00 am to 5:00 pm as follows:

(a) On Boxing Day 26 December in each year;

(b) On Easter Monday in each year;

(d) On the Sunday immediately prior to the Father’s birthday in 2017 and subsequent years;

(e) On Sunday 17 July 2016;

(f) On Sunday 16 July 2017;

(g) On Sunday 20 November 2016;

(h) On Sunday 19 November 2017;

(i) On Father’s day in each year; and

(j) At such other times as the parties may agree.

If either of the children expresses a wish not to spend time with the Father on a day prescribed by these Orders then the Mother must inform the Father fourteen (14) days beforehand.

The Father is restrained by injunction from using abusive or offensive language to or in the presence or hearing of either of the children.

The Father is permitted to send the children Christmas cards and gifts and birthday cards and gifts.

Each parent is permitted to communicate directly with either of the children’s schools, sporting bodies and medical practitioners to obtain any necessary information or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.

The Father is permitted to obtain copies of the children’s school reports from the children’s respective schools together with copies of school bulletins, newsletters, information about school photographs and other information normally provided to parents of children attending the particular school.

Each parent must keep the other parent advised of the health of the children or either of them including serious illness, medication or hospitalisation of the children or either of them as soon as is reasonably practicable.

In accordance with the provisions of section 62G of the Family Law Act 1975 the parties and the children are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services for the purpose of interviews to prepare a Family Report on matters concerning the care, welfare and development of the children X born (omitted) 2003 and Y born (omitted) 2004.

10.

The Mother is to file and serve an Application to discharge, vary or suspend the primary order together with an affidavit in support within twenty-eight (28) days.

11.

The parties are to pay their own costs.

12.

The substantive Application is transferred to the docket of Judge Boyle and is listed before Judge Boyle at 9:30 am on 20 July 2016 for the purpose of setting a final hearing date.

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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