Egbert and Toohey - [2014] FCCA 1564

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGBERT & TOOHEY

[2014] FCCA 1564

Catchwords:
FAMILY LAW – Children – children’s best interests – father’s application for equal time – Family Consultant’s evidence and opinions – Makita principles.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Sched. 1, Pt 2

B & S [2004] FMCAfam 61
KB & TC (2005) FLC 93-224
Bright and Bright v Bright and Mackley (1995) FLC 92-570

Champness & Hanson (2009) FLC 93-407

H and H (2003) FLC 93-168
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
MRR v GR (2010) FLC 93-424

Mulvany & Lane (2009) FLC 93-404

Sproat & Brimm [2013] FCCA 1823
Stevens & Lee (1991) FLC 92-201
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Wainder & Wainder (2011) FLC 93-473

Applicant:

MS EGBERT

Respondent:

MR TOOHEY

File Number:

LNC 143 of 2012

Judgment of:

Judge Roberts

Hearing dates:

1 and 2 April 2014

Date of Last Submission:

2 April 2014

Delivered at:

Launceston

Delivered on:

25 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr C Tesoriero

Solicitors for the Applicant:

Kay & Ruddle Lawyers

Counsel for the Respondent:

Mr P McVeity

Solicitors for the Respondent:

McVeity & Associates

ORDERS

MR TOOHEY (“the father”) and MS EGBERT (“the mother”) have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2007 (“the children”).
That the children live with the mother.
That the children spend time and communicate with the father as follows;
(a)each alternate weekend during school terms from the conclusion of school on Thursday until 7:30pm on Sunday, with such time to be extended to 7:30pm on Monday if the Monday is a non-school day;
(b)each Tuesday during school terms from the conclusion of school until 7:30pm;
(c)for half of all school holiday periods as agreed, but failing agreement on a weekly rotational basis with special occasions such as Christmas Eve, Christmas Day and Easter to be included on an annual rotational basis; and
(d)at such other times as may be agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Egbert & Toohey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 143 of 2012

MS EGBERT

Applicant

And

MR TOOHEY

Respondent

REASONS FOR JUDGMENT

Introduction

MS EGBERT (“the mother”) filed an Initiating Application on 16 March 2012 seeking orders for division of property as a consequence of her de facto relationship with MR TOOHEY (“the father”). On 8 May 2012 the father filed a Response seeking orders in relation to the children of the relationship and property orders. The mother then filed a Reply on 4 September 2012 seeking orders in relation to their children.
When the matter came on for hearing on 1 April 2014, the parties had…

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 Egbert and Toohey

Details

AGLC: Egbert and Toohey [2014] FCCA 1564
Case: [2014] FCCA 1564
Decision Date: 25 July 2014

CaseChat Overview and Summary

In the matter of *Egbert and Toohey*, heard by Judge Roberts, the dispute concerned parenting arrangements for two children. The parties, the mother (Ms Egbert) and the father (Mr Toohey), sought orders regarding the children's residence, time spent with each parent, and communication.

The court was required to determine the most appropriate orders for the children, specifically addressing the concept of equal shared parental responsibility, where the children would live, and the specific arrangements for the children to spend time and communicate with the father.

Judge Roberts made orders reflecting equal shared parental responsibility for the children. The court ordered that the children would live with the mother. The father was granted significant time with the children, including alternate weekends from Thursday to Sunday (with an extension to Monday if it was a non-school day), Tuesdays during school terms, and half of all school holiday periods on a rotational basis for special occasions. The orders also allowed for additional time as agreed by the parties.

Orders

Orders of the court

MR TOOHEY (“the father”) and MS EGBERT (“the mother”) have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2007 (“the children”).

That the children live with the mother.

That the children spend time and communicate with the father as follows;

(a) each alternate weekend during school terms from the conclusion of school on Thursday until 7:30pm on Sunday, with such time to be extended to 7:30pm on Monday if the Monday is a non-school day;

(b) each Tuesday during school terms from the conclusion of school until 7:30pm;

(c) for half of all school holiday periods as agreed, but failing agreement on a weekly rotational basis with special occasions such as Christmas Eve, Christmas Day and Easter to be included on an annual rotational basis; and

(d) at such other times as may be agreed between the parties.

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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