Ganit and Ganit - [2018] FCCA 2252

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANIT & GANIT

[2018] FCCA 2252

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61D, 65DAA

Cases cited:

Sayer & Ratcliffe and Anor [2012] FamCAFC 209

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MS GANIT

Respondent:

MR GANIT

File Number:

DUC 119 of 2018

Judgment of:

Judge Myers

Hearing date:

22 June 2018

Date of Last Submission:

22 June 2018

Delivered at:

Parramatta

Delivered on:

27 June 2018

REPRESENTATION

Solicitor for the Applicant:

Ms Raines

Solicitor for the Respondent:

Mr Bainbridge

Solicitor for the Independent Children’s Lawyer:

Ms Shirlow

ORDERS

THE COURT ORDERS THAT:

The parties have equal shared parental responsibility for the children [X] born 2009 and [Y] born 2007.
That where the mother relocates the children’s residence to Town B, Western Australia and thereafter enrols the children in their previous school within 56 days of today’s orders, the children shall live with the mother.
The children spend time with the father as agreed between the parties in writing but failing agreement:
(a)During the school term from after school Friday until 9am Monday morning on each alternate weekend;
(b)For half of each school holiday period, being the first half in even numbered years and the second half in odd numbers years.
On the children’s birthdays, the children shall spend 4 hours with the parent with whom they are not staying that night.
That on the Father’s Day weekend the children to spend the entire weekend with the father even if it not a scheduled weekend for the children to stay with the father.
That on the Mother’s Day weekend the children to spend the entire weekend with the mother even if it not a scheduled weekend for the children to stay with the mother.
The mother and father enrol in a drug & alcohol counselling course within 42 days of today’s orders and the father enrol in and complete an anger management course within 6 months of today’s orders.
That the children spend time with the parents on Christmas Day and Boxing Day in 2018 as follows:
(a)With the mother from 5pm Christmas Eve until 12pm Christmas Day;
(b)With the father from 12pm Christmas Day until 5pm Boxing Day.
Should the mother fail to relocate residence to Town B, Western Australia in accordance with Order 2, then Orders 2–8 shall be discharged and the following orders shall apply:
(a)The children to live with the father.
(b)The parents to have equal shared parental responsibility for the children.
(c)The children to spend time with the mother in the first half of each of the Western Australia school holiday breaks.
The matter is transferred to the Family Court of Western Australia on a time and date to be advised.
Where neither party files an appeal in the proceedings respect of the orders made by the Court today the Independent Children’s Lawyer shall be discharged from the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Ganit &…

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 Ganit and Ganit

Details

AGLC: Ganit and Ganit [2018] FCCA 2252
Case: [2018] FCCA 2252
Decision Date: 27 June 2018

CaseChat Overview and Summary

In *Ganit and Ganit*, the court was asked to determine parenting orders concerning two children, [X] and [Y]. The dispute centred on the children's residence and time spent with each parent, particularly in light of a potential relocation by the mother.

The court was required to make orders regarding equal shared parental responsibility, the children's primary residence, and the specific arrangements for the children to spend time with each parent. Further issues included provisions for the children's birthdays, Father's Day and Mother's Day weekends, and specific Christmas and Boxing Day arrangements for 2018. The court also addressed the need for both parents to undertake counselling and for the father to complete an anger management course. A significant aspect of the determination involved conditional orders, where the outcome for residence and time would differ based on whether the mother relocated the children to a specific location in Western Australia.

The court ordered equal shared parental responsibility for the children. The children were to live with the mother if she relocated them to Town B, Western Australia, and enrolled them in their previous school within 56 days. Otherwise, the children were to live with the father. Specific provisions were made for the children to spend time with the father during school terms and holidays, with alternating arrangements for holiday periods. The orders also detailed how the children would spend time with each parent on their birthdays, Father's Day, Mother's Day, and over Christmas and Boxing Day in 2018. The court also mandated counselling for both parents and anger management for the father. The matter was subsequently transferred to the Family Court of Western Australia.

Orders

Orders of the court

THE COURT ORDERS THAT:

The parties have equal shared parental responsibility for the children [X] born 2009 and [Y] born 2007.

That where the mother relocates the children’s residence to Town B, Western Australia and thereafter enrols the children in their previous school within 56 days of today’s orders, the children shall live with the mother.

The children spend time with the father as agreed between the parties in writing but failing agreement:

(a) During the school term from after school Friday until 9am Monday morning on each alternate weekend;

(b) For half of each school holiday period, being the first half in even numbered years and the second half in odd numbers years.

On the children’s birthdays, the children shall spend 4 hours with the parent with whom they are not staying that night.

That on the Father’s Day weekend the children to spend the entire weekend with the father even if it not a scheduled weekend for the children to stay with the father.

That on the Mother’s Day weekend the children to spend the entire weekend with the mother even if it not a scheduled weekend for the children to stay with the mother.

The mother and father enrol in a drug & alcohol counselling course within 42 days of today’s orders and the father enrol in and complete an anger management course within 6 months of today’s orders.

That the children spend time with the parents on Christmas Day and Boxing Day in 2018 as follows:

(a) With the mother from 5pm Christmas Eve until 12pm Christmas Day;

(b) With the father from 12pm Christmas Day until 5pm Boxing Day.

Should the mother fail to relocate residence to Town B, Western Australia in accordance with Order 2, then Orders 2–8 shall be discharged and the following orders shall apply:

(a) The children to live with the father.

(b) The parents to have equal shared parental responsibility for the children.

10.

The matter is transferred to the Family Court of Western Australia on a time and date to be advised.

11.

Where neither party files an appeal in the proceedings respect of the orders made by the Court today the Independent Children’s Lawyer shall be discharged from the proceedings.

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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