DARLEY & DARLEY - [2018] FamCA 202

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2018] FamCA 202

FAMILY LAW – CHILDREN – Interim parenting orders – where earlier interim parenting orders provided for the children to spend alternate weekends and half school holidays with the father – where judgment is reserved in the matter – where the Independent Children’s Lawyer and father submit that further interim parenting Orders, consistent with the earlier orders, are appropriate and in the children’s best interests – where the mother submits the children should spend time with the father on one day per month during the day and that no time occur during school holidays – where it is ordered that the children spend time with the father each alternate weekend and for a week during school holiday time provided that he provides written confirmation that he has leave from work during the school holiday period.

FAMILY LAW – CHILDREN – Parental responsibility – where the mother’s oral application for sole parental responsibility is dismissed.

Family Law Act 1975 (Cth)

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

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Lawyers

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

3 April 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3 April 2018

REPRESENTATION

APPLICANT:	In person by telephone
RESPONDENT:	In person by telephone

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

The children, X, born on … 2006, and Y, born on … 2009, (“the children”) spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R City Shopping Centre, Suburb R Street, Suburb R at the commencement of time) until 3.00 pm on Friday, 13 April 2018 (with changeover to occur at K Town Shopping Centre) provided that by 5.00 pm on Tuesday, 3 April 2018, the father provide the Independent Children’s Lawyer and the mother with written confirmation from his employer assuring that he has leave from work from Friday, 6 April 2018 until Friday, 13 April 2018.
In the event that the father provides the Independent Children’s Lawyer and the mother with written confirmation referred to in Clause 1 of this Order, the father shall file and serve, by 4.00 pm on Tuesday, 10 April 2018, an affidavit from his employer in which the fact of his holiday time is sworn to.
In the event that the father does not notify the Independent Children’s Lawyer and the mother by 5.00 pm on Tuesday, 3 April 2018 that he is able to have leave from work between 6 April 2018 and 13 April 2018, then the children shall spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R Shopping Centre, Suburb R Street, Suburb R at the…

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 & DARLEY

Details

AGLC: DARLEY & DARLEY [2018] FamCA 202
Case: [2018] FamCA 202
Decision Date: 3 April 2018

CaseChat Overview and Summary

In the matter of *Darley & Darley*, Hogan J of the Family Court of Australia considered interim parenting orders concerning two children. The dispute involved differing proposals for the children's time with their father. The mother sought significantly restricted contact, proposing only one day per month and no time during school holidays, while the father and the Independent Children’s Lawyer advocated for continued alternate weekend and half school holiday arrangements.

The court was required to determine the appropriate interim parenting arrangements for the children, specifically addressing the extent of time the children should spend with their father, including during school holidays. Additionally, the court considered and ruled on the mother's oral application for sole parental responsibility.

Hogan J determined that the children should spend time with the father on alternate weekends and for a week during school holidays, provided the father could confirm he had leave from work for that period. This decision reflected a balance between the father's desire for continued contact and the mother's concerns, with a conditional approach to school holiday time. The mother's application for sole parental responsibility was dismissed by the court.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

The children, X, born on … 2006, and Y, born on … 2009, (“the children”) spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R City Shopping Centre, Suburb R Street, Suburb R at the commencement of time) until 3.00 pm on Friday, 13 April 2018 (with changeover to occur at K Town Shopping Centre) provided that by 5.00 pm on Tuesday, 3 April 2018, the father provide the Independent Children’s Lawyer and the mother with written confirmation from his employer assuring that he has leave from work from Friday, 6 April 2018 until Friday, 13 April 2018.

In the event that the father provides the Independent Children’s Lawyer and the mother with written confirmation referred to in Clause 1 of this Order, the father shall file and serve, by 4.00 pm on Tuesday, 10 April 2018, an affidavit from his employer in which the fact of his holiday time is sworn to.

In the event that the father does not notify the Independent Children’s Lawyer and the mother by 5.00 pm on Tuesday, 3 April 2018 that he is able to have leave from work between 6 April 2018 and 13 April 2018, then the children shall spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R Shopping Centre, Suburb R Street, Suburb R at the commencement of time) until 3.00 pm on Sunday, 8 April 2018 (with changeover to occur at the K Town Shopping Centre).

Unless otherwise agreed between the parents in writing, the children shall spend time with the father as follows:

(a) from after school on Friday, 20 April 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 22 April 2018 (with changeover to occur at K Town Shopping Centre); and

(b) from after school on Friday, 4 May 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 6 May 2018 (with changeover to occur at K Town Shopping Centre); and

(c) from after school on Friday, 18 May 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 20 May 2018 (with changeover to occur at K Town Shopping Centre), with time to occur each alternate weekend thereafter.

In the event that the father is able to have leave from work during the time the children shall spend time with him in the June/July 2018 school holiday period, then the children shall spend school holiday time with the father from after school on Friday, 29 June 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Friday, 6 July 2018 (with changeover to occur at K Town Shopping Centre).

The alternate weekend time pursuant to Clause 4c of this Order is suspended during the June/July 2018 holiday period.

Unless otherwise agreed between the parents in writing, the children shall spend time with the father each alternate weekend commencing from after school on Friday, 20 July 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 22 July 2018 (with changeover to occur at K Town Shopping Centre), which such time to occur each alternate weekend thereafter.

AND IT IS FURTHER ORDERED THAT

The mother’s oral application made today for sole parental responsibility is dismissed.

AND IT IS FURTHER ORDERED THAT

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.