Egan & Egan - [2017] FamCA 170

FAMILY COURT OF AUSTRALIA

EGAN & EGAN

[2017] FamCA 170

FAMILY LAW - CHILDREN – Where the father seeks mid-week time during school term – Where the mother resists an order for mid-week time – Where there is an order for equal shared parental responsibility – Where the provisions of ss 65DAA(2) are enlivened – What the word “consider” means – Whether the statement in Goode & Goode at [64] survives the statement by the High Court in Bondelmonte v Bondelmonte at [43] – Where it is proper to make an order for mid-week time.

Family Law Act 1975 (Cth)

Bondelmonte v Bondelmonte [2017] HCA 8
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
E & S [2010] FCWA 3
Goode & Goode (2006) FLC 93-286
Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987); [1987] FCA 457; (1987) 14 ALD 291
Morton & Morton [2014] FamCA 672

APPLICANT:

Ms Egan

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Egan

Legal Aid NSW

FILE NUMBER:

SYC

6451

2014

DATE DELIVERED:

16 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

3 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Eldershaw

SOLICITOR FOR THE APPLICANT:

K D Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Petrie

SOLICITOR FOR THE RESPONDENT:

Photios Vouroudis & Co

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Legal Aid NSW

Orders

During New South Wales school terms, the children S Egan born

… 2004, H Egan born … 2006 and Y Egan born … 2008 spend time with the father from after school to 7.30 pm Wednesday each week.
The father shall collect the children from their respective schools at the commencement of time and shall return the children to the mother’s residence at the conclusion of time.
This order shall commence in the school week following the making of these orders.
The father is to ensure the children have their evening meal, complete their homework and do any other after school activities on Wednesday each week.
The father’s application is otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Egan & Egan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6451 of 2017

Ms Egan

Applicant

and

Mr Egan

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 1 March 2017, prior to the commencement of the final hearing in which the mother and the father sought different parenting and property settlement orders, the parties…

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 Egan & Egan

Details

AGLC: Egan & Egan [2017] FamCA 170
Case: [2017] FamCA 170
Decision Date: 16 March 2017

CaseChat Overview and Summary

The case of *Egan & Egan* concerned an application by the father for orders regarding the time the children, S Egan, H Egan, and Y Egan, would spend with him. The dispute centred on the specific arrangements for these periods of time, particularly during New South Wales school terms. The decision was made by Watts J.

The primary legal issue before the court was to determine the appropriate orders for the children's time with the father. This involved considering the practicalities of collection from school, the duration of the time spent with the father, and the responsibilities to be undertaken by the father during that time, including ensuring the children had their evening meal, completed homework, and participated in any after-school activities.

Watts J ordered that during New South Wales school terms, the children would spend time with the father from after school until 7:30 pm each Wednesday. The father was to collect the children from their respective schools and return them to the mother's residence at the conclusion of this period. The father was also to ensure the children had their evening meal, completed their homework, and engaged in any other after-school activities on Wednesdays. The father's application was otherwise dismissed.

Orders

Orders of the court

During New South Wales school terms, the children S Egan born

… 2004, H Egan born … 2006 and Y Egan born … 2008 spend time with the father from after school to 7.30 pm Wednesday each week.

The father shall collect the children from their respective schools at the commencement of time and shall return the children to the mother’s residence at the conclusion of time.

This order shall commence in the school week following the making of these orders.

The father is to ensure the children have their evening meal, complete their homework and do any other after school activities on Wednesday each week.

The father’s application is otherwise dismissed.

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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