Eddington & Eddington (No 2)

Case [2007] FamCA 1299

FAMILY COURT OF AUSTRALIA

EDDINGTON & EDDINGTON (NO. 2) [2007] FamCA 1299

FAMILY LAW – PARENTING – APPEAL – SUBSTANTIAL AND SIGNIFICANT TIME –Established that trial Judge’s orders did not provide for substantial and significant time for the children to spend with the appellant. Orders lacked substance of time the children were to spend with the appellant, by virtue of lengthy periods without any time provided, and thereby lacked quality. House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) 144 CLR 513, CDJ v VAJ (1998) 197 CLR 172 and section 65DAA Family Law Act 1975 (Cth) cited.

PROPERTY SETTLEMENT – APPEAL – SECTION 75(2) – Not established that trial Judge’s conclusions relating to the income of the parties constituted a miscarriage of the exercise of discretion.
Family Law Act of 1975 (Cth) s 75(2); s 60CC(2)(a); s 65DAA

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
CDJ v VAJ (1998) 197 CLR 172

Allesch v Maunz (2000) 203 CLR 172

APPELLANT: MR EDDINGTON
RESPONDENT: MS EDDINGTON
FILE NUMBER: SYF 2342 of 2005
APPEAL NUMBER: EA 29 of 2007
DATE DELIVERED: 1 November 2007
PLACE DELIVERED: Parramatta
JUDGMENT OF: Finn, Coleman & Collier JJ
HEARING DATE: 11 October 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 22 December 2006
LOWER COURT MNC: [2007] FamCA

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Carr
SOLICITOR FOR THE APPELLANT: JNT Legal
COUNSEL FOR THE RESPONDENT: Mr. Jackson
SOLICITOR FOR THE RESPONDENT: Anne Day & Associates

Orders

  1. That the appeal against parenting orders of Rose J made 22 December 2006 be allowed.

  2. That Order 4 of the aforementioned orders be discharged and that in lieu thereof, the Court orders that the children are to spend time with the appellant in the 56 day roster as follows:

    (a)       From after school on day 5 (a Friday) until the commencement of school on day 8 (a Monday);

    (b)       From 9am on day 13 (a Saturday) until the commencement of school on day 15 (a Monday);

    (c)       From 9am on day 21 (a Sunday) until the commencement of school on day 22 (a Monday);

    (d)       From after school on day 29 (a Monday) until the commencement of school on day 31 (a Wednesday);

    (e)       From after school on day 38 (a Wednesday) until the commencement of school on day 39 (a Thursday);

    (f)       From after school on day 46 (a Thursday) until 9am on day 48 (a Saturday); and

    (g)       From after school on day 54 (a Friday) until 5pm on day 56 (a Sunday).

  3. That the appeal against property settlement orders of Rose J made 22 December 2006 be dismissed.

  4. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the…

Continue reading Eddington & Eddington (No 2)

Sign in free to access the full text

Details
AGLC
Eddington & Eddington (No 2) [2007] FamCA 1299
Case
[2007] FamCA 1299
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning parenting and property settlement orders made by Rose J. The appeal was brought by the appellant husband against orders that determined the time the children would spend with him and the division of property.

The primary legal issues before the Full Court were whether the trial judge erred in her parenting orders by failing to provide for the children to spend substantial and significant time with the appellant, and whether the trial judge's conclusions regarding the parties' incomes constituted a miscarriage of discretion in the property settlement. The court was required to consider the application of section 65DAA of the *Family Law Act 1975* (Cth) in relation to the parenting arrangements.

The Full Court allowed the appeal against the parenting orders, finding that the trial judge's orders did not, in substance, provide for substantial and significant time for the children to spend with the appellant. The court reasoned that the lengthy periods without any contact meant the orders lacked the necessary quality of time, despite the trial judge's finding that the children had a meaningful relationship with both parties and that the appellant should have substantial and significant time. The court discharged the original Order 4 and substituted a specific 56-day roster detailing the children's time with the appellant. However, the appeal against the property settlement orders was dismissed, as the court found no miscarriage of discretion regarding the trial judge's conclusions on the parties' incomes. The court also granted costs certificates to both the appellant husband and the respondent wife.

Orders

Orders of the court

1.

That the appeal against parenting orders of Rose J made 22 December 2006 be allowed.

2.

That Order 4 of the aforementioned orders be discharged and that in lieu thereof, the Court orders that the children are to spend time with the appellant in the 56 day roster as follows:

(a) From after school on day 5 (a Friday) until the commencement of school on day 8 (a Monday);

(b) From 9am on day 13 (a Saturday) until the commencement of school on day 15 (a Monday);

(c) From 9am on day 21 (a Sunday) until the commencement of school on day 22 (a Monday);

(d) From after school on day 29 (a Monday) until the commencement of school on day 31 (a Wednesday);

(e) From after school on day 38 (a Wednesday) until the commencement of school on day 39 (a Thursday);

(f) From after school on day 46 (a Thursday) until 9am on day 48 (a Saturday); and

(g) From after school on day 54 (a Friday) until 5pm on day 56 (a Sunday).

3.

That the appeal against property settlement orders of Rose J made 22 December 2006 be dismissed.

4.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

5.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

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

Under the heading “Conclusion” the trial Judge focused his attention on the one matter of dispute between the parties, that being the time that the children should spend with the appellant. His Honour recorded, accurately there is no doubt, the arrangements each party sought during school term. The orders sought by each party were referable to the husband’s revolving 56 day work roster which was before his Honour. The terms of the roster were not in dispute. His Honour concluded that:90.…the periods of time to be spent by the two children with the father as sought by the mother with minor variations fulfils both the relevant primary considerations in s60CC(2)(a) of the two children having a meaningful relationship with both parties; represents substantial and significant time with each of the parties; and overall is in the best interests of the two children. (Appeal Book Volume 1, pages 40 – 41, par 90). As will be seen, the crux of the challenge to the trial Judge’s orders with respect to the time the children spend with the appellant during school term has been that, notwithstanding that the trial Judge concluded that the children should spend substantial and significant time with the appellant, what was ultimately ordered could not be considered substantial and significant time spent with him. The trial Judge articulated his reasons for concluding that, subject to minor variations, the orders sought by the respondent were in the children’s best interests. His Honour referred to the children having a “loving and close relationship with each of the parties”, that their views were “clearly” to “spend substantial periods of time with” the appellant, which had “occurred since the parties’ separation and particularly since interim orders were made on 3 May 2006” (Appeal Book Volume 1, page 41, par 92). His Honour recorded that the children had spent “additional or substantial further periods” of time with the appellant as agreed between the parties in the past, and concluded “[t]hat is likely to continue in the future”. (Appeal Book, Volume 1, page 41, par 93). It was accepted that the elder child J preferred to “primarily live” with the respondent (Appeal Book Volume 1, page 41, par 94). The trial Judge thus concluded that “equal shared parenting time will not be reflected in the orders that I make, apart from the pragmatic respect of that being calculated in the husband’s revolving work roster.” (Appeal Book Volume 1, page 41, par 95). That decision has not been challenged in this appeal. His Honour referred to J’s expressed preference for “living in the wife’s home in preparation for his school day” concluding that: 96.…Whilst I do not consider it to be in [J’s] best interests for that to occur each day, as that would necessarily mean he would never spend overnight with the husband during school term other than weekends, nonetheless I have given weight to that view. (Appeal Book Volume 1, page 41 par 96).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.