EASTON & EASTON (No.3) - [2015] FCCA 1837

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTON & EASTON (No.3)

[2015] FCCA 1837

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary orders – where application set down for interim hearing – where there have been contravention proceedings.

PRACTICE AND PROCEDURE – Interim hearing – directions for interim hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit Court of Australia Act 1999 (Cth), s.51

Cases cited:
Easton & Easton [2015] FCCA 1269
Easton & Easton [2015] FCCA 1834

Applicant:

MS EASTON

Respondent:

MR EASTON

File Number:

SYC 6515 of 2013

Judgment of:

Judge Scarlett

Hearing date:

1 July 2015

Date of Last Submission:

1 July 2015

Delivered at:

Sydney

Delivered on:

1 July 2015

REPRESENTATION

Solicitor for the Applicant:

Ms Kaiti

Solicitors for the Applicant:

CBD legal

Solicitor for the Respondent:

Mr Khedr

Solicitors for the Respondent:

Cambridge Legal

Independent Children's Lawyer:

Ms Quirk

Solicitors for the Independent Children's Lawyer:

Crawford Ryan Lawyers Pty Limited

ORDERS

UNTIL FURTHER ORDER

Order 2 of the Orders made by consent on 3 February 2014 shall be varied as follows:
(a)until 4 September 2015, each Sunday from 9:00 am to 5:00 pm
(b)from 4 September:
(i)for the first 3 weekends out 4 from 3:00 pm Saturday to 7:30 pm Sunday;
(ii)for the last weekend out of 4, from 4:00 pm Friday to 9:00 am Saturday.
Order 4 is to be varied as follows:
(a)“That for the purpose of facilitating the contact change-overs the father or his nominee shall collect the children from the mother or her nominee at McDonalds (omitted), (omitted) at the commencement and conclusion of each of the periods set out in Order 4 herein.”
Neither parent is to use any form of corporal punishment or physical chastisement on any of the children.
The Application filed on 20 October 2014 is set down for interim hearing at 10:00 am on Monday 17 August 2015.
As provided by section 51 of the Federal Circuit Court of Australia Act 1999, each party may rely on one affidavit per witness, not to exceed ten (1) pages of text excluding annexures.
Any affidavit to be relied on in the proceedings must be filed and served no later than 10 August 2015.

IT IS NOTED that publication of this judgment under the pseudonym Easton & Easton (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6515 of 2013

MS EASTON

Applicant

And

MR EASTON

Respondent

REASONS FOR JUDGMENT

Application in a Case

This is an Application in a Case by the mother of the parties’ three children, X aged 5 years, Y aged 4 years and Z aged 3 years, seeking to very interim parenting orders made by consent on 3 February 2014. She seeks that the father’s time with the children should be at a Contact Centre, that the father should attend an accredited parenting course and that she should have sole…

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.

Keep reading for free

Create a free CaseChat account to read EASTON & EASTON (No.3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 1837
Decision Date: 1 July 2015

CaseChat Overview and Summary

This matter concerned an application to vary existing parenting orders made by consent on 3 February 2014. The application was brought by one of the parents, and the court was required to determine the terms of interim parenting arrangements pending a final hearing. The court also considered directions for the interim hearing.

The primary legal issue before Judge Scarlett was how to vary the existing parenting orders to establish interim contact arrangements for the children. This involved determining specific times and days for the children to spend with each parent, as well as addressing practical aspects of contact changeovers. The court also had to consider the procedural requirements for the interim hearing, including the filing and service of affidavits.

In reaching its decision, the court varied the existing orders to provide a detailed schedule for the children's contact with the father. This schedule included specific times and days, with a phased approach to the contact arrangements. The court also varied an order concerning the method of changeovers, specifying a particular location for the father or his nominee to collect the children. Furthermore, the court made a new order prohibiting corporal punishment and set strict timelines for the filing and service of affidavits, limiting each witness to one affidavit of ten pages, excluding annexures, in accordance with section 51 of the Federal Circuit Court of Australia Act 1999. The application was set down for an interim hearing on 17 August 2015.

Orders

Orders of the court

UNTIL FURTHER ORDER

Order 2 of the Orders made by consent on 3 February 2014 shall be varied as follows:

(a) until 4 September 2015, each Sunday from 9:00 am to 5:00 pm

(b) from 4 September:

(i) for the first 3 weekends out 4 from 3:00 pm Saturday to 7:30 pm Sunday;

(ii) for the last weekend out of 4, from 4:00 pm Friday to 9:00 am Saturday.

Order 4 is to be varied as follows:

(a) “That for the purpose of facilitating the contact change-overs the father or his nominee shall collect the children from the mother or her nominee at McDonalds (omitted), (omitted) at the commencement and conclusion of each of the periods set out in Order 4 herein.”

Neither parent is to use any form of corporal punishment or physical chastisement on any of the children.

The Application filed on 20 October 2014 is set down for interim hearing at 10:00 am on Monday 17 August 2015.

As provided by section 51 of the Federal Circuit Court of Australia Act 1999, each party may rely on one affidavit per witness, not to exceed ten (1) pages of text excluding annexures.

Any affidavit to be relied on in the proceedings must be filed and served no later than 10 August 2015.

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.