Devlin and Judd - [2018] FCCA 371

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVLIN & JUDD

[2018] FCCA 371

Catchwords:
FAMILY LAW – Parenting – time with father – parental responsibility.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Penski & Kocher (No.2) [2013] FamCA 255
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MR DEVLIN

Respondent:

MS JUDD

File Number:

PAC 4754 of 2014

Judgment of:

Judge Obradovic

Hearing dates:

22, 23, 24 and 26 May 2017

Date of Last Submission:

26 May 2017

Delivered at:

Parramatta

Delivered on:

20 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Solicitors for the Applicant:

Shedden & Associates

Counsel for the Respondent:

Mr Hodgson

ORDERS

All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the long term care, welfare and development of the children [X] born (omitted) 2008, [Y] born (omitted) 2011 and [Z] born (omitted) 2014.
The children shall live with the mother.
The children shall spend time with the father:
(a)In respect of the children [X] and [Y]:
(i)From the conclusion of school on Friday until 5.30pm on Sunday each alternate week commencing 23 February 2018.
(ii)From the conclusion of school on Tuesday until the commencement of school on Wednesday commencing 27 February 2018.
(iii)For one half of the school holidays at the end of Term 1, 2 and 3, being the second half of the school holidays in even numbered years commencing in 2018 and the first half in odd numbered years commencing in 2019.
(iv)For one half of the Christmas/January school holidays, upon a week about basis in alternating weeks being weeks 2, 4 and 6 in the school holidays at the conclusion of the 2018 school year and thereafter for one half of the school holidays, being the second half of the school holidays in even numbered years commencing in 2020 and the first half in odd numbered years commencing in 2019.
(v)Notwithstanding any other order on Father’s Day from 9am until 5.30pm;
(vi)Notwithstanding any other order from 3pm on 25 December until 3pm on 26 December each year;
(vii)Notwithstanding any other order from 9am on Good Friday until 9am on Easter Sunday each alternate year commencing in 2018 and from 9am on Easter Sunday until 5.30pm on Easter Monday each alternate year commencing in 2019;
(b)In respect of the child [Z]:
(i)Until he turns four years old:
1.   From 10am until 5.30pm on Sunday each alternate week commencing 25 February 2018;
2.   From 3pm on Tuesday until 9am on Wednesday each alternate week commencing 27 February 2018.
(ii)Upon turning four years old and thereafter:
1.   In accordance with paragraph 4(a) above.
(c)On each of the children’s birthdays all three children shall spend time with the father for three hours as agreed and failing agreement from 3pm until 6pm.
If changeover is to…

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 Devlin and Judd

Details

AGLC: Devlin and Judd [2018] FCCA 371
Case: [2018] FCCA 371
Decision Date: 20 February 2018

CaseChat Overview and Summary

In *Devlin and Judd*, heard by Judge Obradovic, the court was tasked with determining parenting orders for three children. The dispute concerned the arrangements for the children's care and time spent with each parent following the breakdown of the parents' relationship.

The primary legal issues before the court were to establish sole parental responsibility for the children's long-term care, welfare, and development, and to determine the living arrangements for the children. Additionally, the court was required to set out specific times and conditions for the children to spend with the father, including provisions for school holidays, birthdays, and significant dates, as well as to address the practicalities of changeovers and communication between the parents and children.

Judge Obradovic discharged all prior parenting orders and made new orders granting the mother sole parental responsibility for the long-term care, welfare, and development of the children, with the children to live with her. The court then detailed a comprehensive schedule for the children to spend time with the father, with variations for the youngest child until he turned four years old. The orders also included specific provisions for changeovers at school and other locations, telephone contact during school holidays, and arrangements for the children's birthdays, Father's Day, and Christmas. The mother was also granted specific time with the children on Mother's Day and their birthdays.

Orders

Orders of the court

All prior parenting orders are discharged.

The mother shall have sole parental responsibility for the long term care, welfare and development of the children [X] born (omitted) 2008, [Y] born (omitted) 2011 and [Z] born (omitted) 2014.

The children shall live with the mother.

The children shall spend time with the father:

(a) In respect of the children [X] and [Y]:

(i) From the conclusion of school on Friday until 5.30pm on Sunday each alternate week commencing 23 February 2018.

(ii) From the conclusion of school on Tuesday until the commencement of school on Wednesday commencing 27 February 2018.

(iii) For one half of the school holidays at the end of Term 1, 2 and 3, being the second half of the school holidays in even numbered years commencing in 2018 and the first half in odd numbered years commencing in 2019.

(iv) For one half of the Christmas/January school holidays, upon a week about basis in alternating weeks being weeks 2, 4 and 6 in the school holidays at the conclusion of the 2018 school year and thereafter for one half of the school holidays, being the second half of the school holidays in even numbered years commencing in 2020 and the first half in odd numbered years commencing in 2019.

(v) Notwithstanding any other order on Father’s Day from 9am until 5.30pm;

(vi) Notwithstanding any other order from 3pm on 25 December until 3pm on 26 December each year;

(vii) Notwithstanding any other order from 9am on Good Friday until 9am on Easter Sunday each alternate year commencing in 2018 and from 9am on Easter Sunday until 5.30pm on Easter Monday each alternate year commencing in 2019;

(b) In respect of the child [Z]:

(i) Until he turns four years old:

1. From 10am until 5.30pm on Sunday each alternate week commencing 25 February 2018;

2. From 3pm on Tuesday until 9am on Wednesday each alternate week commencing 27 February 2018.

(ii) Upon turning four years old and thereafter:

1. In accordance with paragraph 4(a) above.

(c) On each of the children’s birthdays all three children shall spend time with the father for three hours as agreed and failing agreement from 3pm until 6pm.

If changeover is to occur at the commencement and conclusion of school then it shall occur at the school which the children attend (including for [Z] at all times).

In order to facilitate changeover during school holidays and on other occasions while the children are not at school changeover shall occur at (omitted).

The father shall have telephone contact with the children during school holiday periods when the children are not in his care between 10am and 10.30am on Tuesdays and Thursdays.

The mother shall have telephone contact with the children during school holiday periods when the children are not in her care between 10am and 10.30am on Tuesdays and Thursdays.

In order to facilitate orders 7 and 8 above the party who has the care of the children shall ensure the children are contactable to receive a telephone call on their mobile phone.

10.

Notwithstanding any other order, the children shall spend time with the mother on Mother’s Day from 9am until 5.30pm.

11.

Notwithstanding any other orders the children shall spend time with the mother on the children’s birthday for three hours and failing agreement from 6pm to 9pm.

12.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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