Darley and Darley (No. 4) - [2017] FamCA 850

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 4)

[2017] FamCA 850

FAMILY LAW – CHILDREN – When the children are to spend time with the father – Where the final hearing was part heard – Where interim orders were sought to be made to deal with the time between now and February 2018 – Where the court ordered the Father spend some specific weekend and holiday time with the children.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Darley

RESPONDENT:

Ms Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

25 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

17, 18, 19 & 20 October 2017

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Pendergast of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

Orders

IT IS ORDERED THAT

Clause (1) on the Order made 13 October 2016 is amended by the insertion of the words “as amended on 25 October 2017” after the words “29 August 2016”.
Clause (2) of the Order made 29 August 2016 is discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

The children, X, born on … 2006, and Y, born on … 2009, spend time with the father at all times as may be agreed between the parents in writing and, failing agreement as follows:
(a)from after school on Friday, 27 October 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 29 October 2017 (with changeover to occur at K Town Shopping Centre); and
(b)from after school on Friday, 10 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 12 November 2017 (with changeover to occur at K Town Shopping Centre); and
(c)from after school on Friday, 24 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 26 November 2017 (with changeover to occur at K Town Shopping Centre); and
(d)from after school on Friday, 8 December 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Tuesday, 12 December 2017 (with changeover to occur at K Town Shopping Centre); and
(e)from 3.00 pm on Friday, 22 December 2017 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Monday, 25 December 2017 (with changeover to occur at K Town Shopping Centre); and
(f)from 3.00 pm on Tuesday, 2 January 2018 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Tuesday, 9 January 2018 (with changeover to occur at K Town Shopping Centre); and

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 Darley and Darley (No. 4)

Details

AGLC: Darley and Darley (No. 4) [2017] FamCA 850
Case: [2017] FamCA 850
Decision Date: 25 October 2017

CaseChat Overview and Summary

In *Darley and Darley (No. 4)*, Hogan J of the Family Court of Australia considered an application to amend existing orders concerning the time spent by the children, X and Y, with their father. The dispute centred on the specific arrangements for the children's time with the father, following previous orders made on 13 October 2016 and 29 August 2016.

The court was required to determine how to amend the existing orders to reflect the agreed-upon arrangements for the children's time with the father. This involved considering the discharge of a previous clause and the insertion of new provisions detailing specific periods of time the children would spend with the father, including collection and changeover arrangements.

Hogan J applied the principles of the *Family Law Act 1975* (Cth), specifically sections 65DA(2) and 62B, to ensure the orders were clear and that the parties understood the consequences of contravention. The court amended the previous order of 13 October 2016 by inserting a reference to a subsequent amendment on 25 October 2017. Clause (2) of the order made on 29 August 2016 was discharged. The court then made new orders, effective until further order, detailing a schedule for the children to spend time with the father, commencing from 27 October 2017 and extending into January 2018, with specific changeover locations and times. The parties were granted liberty to apply on 48 hours' notice, and a fact sheet detailing obligations, consequences of contravention, and support services was incorporated into the orders.

Orders

Orders of the court

IT IS ORDERED THAT

Clause (1) on the Order made 13 October 2016 is amended by the insertion of the words “as amended on 25 October 2017” after the words “29 August 2016”.

Clause (2) of the Order made 29 August 2016 is discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

The children, X, born on … 2006, and Y, born on … 2009, spend time with the father at all times as may be agreed between the parents in writing and, failing agreement as follows:

(a) from after school on Friday, 27 October 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 29 October 2017 (with changeover to occur at K Town Shopping Centre); and

(b) from after school on Friday, 10 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 12 November 2017 (with changeover to occur at K Town Shopping Centre); and

(c) from after school on Friday, 24 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 26 November 2017 (with changeover to occur at K Town Shopping Centre); and

(d) from after school on Friday, 8 December 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Tuesday, 12 December 2017 (with changeover to occur at K Town Shopping Centre); and

(e) from 3.00 pm on Friday, 22 December 2017 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Monday, 25 December 2017 (with changeover to occur at K Town Shopping Centre); and

(f) from 3.00 pm on Tuesday, 2 January 2018 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Tuesday, 9 January 2018 (with changeover to occur at K Town Shopping Centre); and

(g) from after school on Thursday, 25 January 2018 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 28 January 2018 (with changeover to occur at K Town Shopping Centre); and

(h) from after school on Friday, 9 February 2018 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 11 February 2018 (with changeover to occur at K Town Shopping Centre).

AND IT IS FURTHER ORDERED THAT

The parties have liberty to apply on the giving of 48 hours’ notice in writing by directing correspondence to … to the attention of the Case Manager.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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