Galanis & Macris - [2015] FCCA 2567

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALANIS & MACRIS

[2015] FCCA 2567

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – equal shared parental responsibility – best interests of the children – shared care – whether shared care is in the best interests of the children – two children aged ten years and nine years – wishes of children considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA

Cases cited:
Hall & Hall (1979) 5 Fam LR 509; FLC 90-713

Applicant:

MS GALANIS

Respondent:

MR MACRIS

File Number:

WOC 576 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

6-7 November 2012, 8 February, 19 July 2013, 29 August 2014

Date of Last Submission:

4 September 2014

Delivered at:

Sydney

Delivered on:

12 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Wong

Solicitors for the Applicant:

Hansons Lawyers

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

Rita Thakur & Associates

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for all long term decisions for the care, welfare and development of the children X born (omitted) 2004 and Y born (omitted) 2006.
Each party is to have sole parental responsibility for all day to day decisions concerning the care or welfare of the children during all times that the children are in the care of that party in accordance with these Orders.
The children X and Y are to live with the Mother.
The Father is to spend time with the children as follows:
(a)Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Tuesday;
(b)For half of each of the Autumn, Winter and Spring school holiday periods, being the first half in 2015 and all odd numbered years thereafter and the second half in 2016 and all even numbered years thereafter;
(c)For two weeks during the Christmas/January school holidays, commencing at 9:00am. on 2 January in each year and concluding at 5:00pm. on 16 January in each year;
(d)From 5:00pm on the Saturday immediately prior to Fathers’ Day until the commencement of school on the following Tuesday;
(e)On each of the children’s birthdays if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school;
(f)On the Father’s birthday if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the day falls on a school day or from 10:00am until 2:00pm if the Father’s birthday falls on day when the children are not required to attend school;
(g)From 12:00 noon on Christmas Eve until 2:00 pm on Christmas Day in 2015 and all odd numbered years thereafter;
(h)From…

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.

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Details

AGLC: Galanis & Macris [2015] FCCA 2567
Case: [2015] FCCA 2567
Decision Date: 12 June 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Scarlett in the Federal Circuit Court of Australia. The dispute involved the Applicant Mother and the Respondent Father regarding the care arrangements for their two children, X and Y.

The court was required to determine the appropriate orders for parental responsibility and the time the children would spend with each parent. Specifically, the court had to consider the division of long-term and day-to-day decision-making, the primary residence of the children, and the detailed schedule for the Father's time with the children, including during school holidays and special occasions. The court also had to address the practicalities of changeovers and the communication between parents regarding the children's well-being and schooling.

Judge Scarlett discharged all earlier parenting orders and made new orders reflecting equal shared parental responsibility for long-term decisions, while each parent was granted sole responsibility for day-to-day decisions concerning the children when they were in their care. The children were ordered to live with the Mother, and a comprehensive schedule was established for the Father's time with the children, encompassing alternate weekends, half of each school holiday period, specific Christmas and Easter arrangements, and time on birthdays. The court also stipulated that changeovers would generally occur at the children's school, with provisions for collection and return of the children. Importantly, the Father's time was suspended on certain occasions, including the weekend of Mother's Day and during Orthodox Easter when the children were in the Mother's care. The orders also included provisions for communication regarding the children's health and their involvement in school activities.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for all long term decisions for the care, welfare and development of the children X born (omitted) 2004 and Y born (omitted) 2006.

Each party is to have sole parental responsibility for all day to day decisions concerning the care or welfare of the children during all times that the children are in the care of that party in accordance with these Orders.

The children X and Y are to live with the Mother.

The Father is to spend time with the children as follows:

(a) Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Tuesday;

(b) For half of each of the Autumn, Winter and Spring school holiday periods, being the first half in 2015 and all odd numbered years thereafter and the second half in 2016 and all even numbered years thereafter;

(c) For two weeks during the Christmas/January school holidays, commencing at 9:00am. on 2 January in each year and concluding at 5:00pm. on 16 January in each year;

(d) From 5:00pm on the Saturday immediately prior to Fathers’ Day until the commencement of school on the following Tuesday;

(e) On each of the children’s birthdays if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school;

(f) On the Father’s birthday if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the day falls on a school day or from 10:00am until 2:00pm if the Father’s birthday falls on day when the children are not required to attend school;

(g) From 12:00 noon on Christmas Eve until 2:00 pm on Christmas Day in 2015 and all odd numbered years thereafter;

(h) From 2:00pm on Christmas Day until 6:00pm on Boxing Day in 2016 and all even numbered years thereafter;

(i) At Orthodox Easter if the children are not otherwise in the care of the father in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00am if the following day is not a school day; and

(j) At such other times, if any, as the parties shall agree.

To avoid confusion, for the purposes of the above Orders:

(a) The parties’ time with the children for the first half of the Autumn, Winter and Spring school holiday period will commence at 9:00am on the Saturday immediately after the end of the school term and conclude at 12:00 noon on the middle Saturday of the school holiday period; and

(b) The parties’ time with the children for the second half of the Autumn, Winter and Spring school holidays will commence at 12:00 noon on the middle Saturday of the school holiday period and conclude at 5:00pm on the day immediately before the children are required to attend school at the commencement of the next school term.

Changeovers in accordance with the above Orders are to take place at the children’s school as the case may and on other occasions the Father is to collect the children from the Mother’s residence at the commencement of the children’s time with him and the Mother is to collect the children from the Father’s residence at the conclusion of their time with him, unless the parties agree otherwise in writing.

Notwithstanding the above Orders, the Father’s time with the children is to be suspended on the following occasions:

(a) From 5:00 pm on the Saturday immediately prior to Mothers’ Day until the commencement of school on the day immediately after Mothers’ Day;

(b) At Orthodox Easter if the children are not otherwise in the care of the mother in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00 am if the following day is not a school day.

Each party must inform the other party as soon as reasonably possible of any illness or injury suffered by either of the children whilst that child is in the care of that party.

10.

Each party may attend all school sporting events, social functions, parent-teacher interviews, prize-giving ceremonies, special assemblies and all other school functions to which parents of children attending the school are normally invited.

11.

Each party is entitled to receive from the school or schools attended by the children copies of all school reports, newsletters, information about school photographs and other material normally provided to parents of children attending the children’s school or schools.

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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