Eriksson and Tinkham - [2011] FMCAfam 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ERIKSSON & TINKHAM

[2011] FMCAfam 341

FAMILY LAW – Parenting – Christian and Islamic parents – dispute over Christmas period and changeover.

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
Lindell & Ranteri [2010] FamCA 52

Applicant:

MS ERIKSSON

Respondent:

MR TINKHAM

File Number:

SYC 5611 of 2009

Judgment of:

Monahan FM

Hearing dates:

25 & 26 October 2010

Date of Last Submission:

26 October 2010

Delivered at:

Sydney

Delivered on:

12 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Antoinette Campbell Legal Solutions

Counsel for the Respondent:

Mr Sansom

Solicitors for the Respondent:

Watts McCray Family Lawyers

THE COURT ORDERS THAT:

Paragraphs two (2) to 21 of the Orders made on 26 October 2010 (“the final Orders”) remain in full force and effect.
Paragraph 22 of the final Orders be discharged.
In addition to the arrangements provided for in the final Orders, for all New South Wales gazetted summer school holiday periods (“the summer school holiday period/s”) the children [X], born [in] 2004, and [Y], born [in] 2007, (“the children”) spend time with MR TINKHAM (“the Father”) as agreed, or failing agreement, as follows:
(a)for the summer school holiday period commencing at the end of 2011:
(i)from 24 December 2011 until 26 December 2011; and
(ii)for two (2) non-consecutive seven (7) day periods as agreed, or failing agreement, from 3 to 10 January 2012 and 17 to 24 January 2012;
(b)for the summer school holiday period commencing at the end of 2012:
(i)for two (2) non-consecutive 10 day periods as agreed or, failing agreement, from 28 December 2012 to 7 January 2013 and from 17 January 2013 to 27 January 2013;
(c)in 2013 and for each year thereafter:
(i)for summer school holiday periods commencing in odd-numbered years, the first half of the holiday period (for the avoidance of doubt, Christmas day is included in the first half of the summer school holiday period); and
(ii)for summer school holiday periods commencing in even-numbered years, in the second half of the holiday period;
(d)for the purposes of subparagraph 3(c) herein:
(i)each summer school holiday period shall be calculated as commencing at 9:00am on the first day after the school term concludes and concluding on 9:00am on the last day before the school term commences; and
(ii)in the event that there are an odd number of days in the summer school holiday period, making it impossible to calculate the conclusion of the first half and the commencement of the second half of the holiday period (“the midpoint”), the midpoint shall be deemed to be at 9:00am on the morning in advance of the date closest to the midpoint; and
(e)in the event that the parties fail to agree as to the commencement and conclusion times for all periods defined herein, then such times commence at 9:00am on the first day and end…

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 Eriksson and Tinkham

Details

AGLC: Eriksson and Tinkham [2011] FMCAfam 341
Case: [2011] FMCAfam 341
Decision Date: 12 May 2011

CaseChat Overview and Summary

The case involved a dispute between the parents of two minor children, Eriksson and Tinkham. The matter was heard in the Family Court of Australia. The primary issue for determination was the arrangement of the children's time during New South Wales summer school holiday periods, following the discharge of a previous order. The parents were required to decide on a schedule for the children to spend time with their father, including specific dates and times for handovers, communication between the parties, and restrictions on negative comments about each other in front of the children.

The court examined the existing orders and the need for a new arrangement that would provide clarity and stability for the children's summer holiday periods. It considered the importance of the children's welfare and the parents' ability to cooperate. The court determined that the existing orders should remain in force but that a new arrangement for the summer holiday periods was necessary. The court concluded that the children should spend alternating halves of the holiday periods with their father, with specific dates and times for handovers and communication between the parents. The court also imposed restrictions on negative comments about each other in front of the children and mandated family dispute resolution for future disagreements.

The court's orders included the continuation of the existing arrangements for the children's time, with specific provisions for the summer holiday periods. The court also required the parents to communicate through a shared book, refrain from negative comments in front of the children, and participate in family dispute resolution. The court noted that the obligations and consequences of the orders were detailed in Annexure A and incorporated into the orders themselves.

Orders

Orders of the court

Paragraphs two (2) to 21 of the Orders made on 26 October 2010 (“the final Orders”) remain in full force and effect.

Paragraph 22 of the final Orders be discharged.

In addition to the arrangements provided for in the final Orders, for all New South Wales gazetted summer school holiday periods (“the summer school holiday period/s”) the children [X], born [in] 2004, and [Y], born [in] 2007, (“the children”) spend time with MR TINKHAM (“the Father”) as agreed, or failing agreement, as follows:

(a) for the summer school holiday period commencing at the end of 2011:

(i) from 24 December 2011 until 26 December 2011; and

(ii) for two (2) non-consecutive seven (7) day periods as agreed, or failing agreement, from 3 to 10 January 2012 and 17 to 24 January 2012;

(b) for the summer school holiday period commencing at the end of 2012:

(i) for two (2) non-consecutive 10 day periods as agreed or, failing agreement, from 28 December 2012 to 7 January 2013 and from 17 January 2013 to 27 January 2013;

(i) for summer school holiday periods commencing in odd-numbered years, the first half of the holiday period (for the avoidance of doubt, Christmas day is included in the first half of the summer school holiday period); and

(ii) for summer school holiday periods commencing in even-numbered years, in the second half of the holiday period;

(d) for the purposes of subparagraph 3(c) herein:

(i) each summer school holiday period shall be calculated as commencing at 9:00am on the first day after the school term concludes and concluding on 9:00am on the last day before the school term commences; and

(ii) in the event that there are an odd number of days in the summer school holiday period, making it impossible to calculate the conclusion of the first half and the commencement of the second half of the holiday period (“the midpoint”), the midpoint shall be deemed to be at 9:00am on the morning in advance of the date closest to the midpoint; and

(e) in the event that the parties fail to agree as to the commencement and conclusion times for all periods defined herein, then such times commence at 9:00am on the first day and end at 9:00am on the last day of the period.

Effective immediately, unless otherwise agreed between the parties, for the purposes of facilitating changeover for all time that the children spend with the Father pursuant to these Orders and the Orders made on 26 October 2010, the following occur:

(a) the Mother deliver the children to the Father’s residence at the commencement of the children’s time with the Father; and

(b) the Father return the children to the Mother’s residence at the conclusion of the children’s time with him.

Both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children move from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled.

Each party be restrained from denigrating, or permitting any other person to denigrate, the other party, any partner of the other party, or any family member of the other party, in the presence or hearing of the children.

Unless already complied with, the parties forthwith comply with paragraphs 13 to 18 inclusive of the Orders made by Sexton FM on

3 March 2010.

Both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long term care, welfare and development.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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