Geisler and Geisler - [2018] FCCA 3959

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEISLER & GEISLER

[2018] FCCA 3959

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – whether it is in the children’s best interest to bring finality to the proceedings or to extend the time that the proceedings are before the court – consideration of what is just versus what is expedient – finality is good but justice is better.

Legislation:

Family Law Act 1975, ss.60B, 60B(4), 60CA, 79

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16
Ras Behari Lal v King Emperor [1933] All ER 723
Smith v Western Australia [2014] HCA 3
Gordon & Gordon [2015] FamCA 616

Noam Chomsky ‘The State-Corporate Complex: A Threat to Freedom and Survival’ (Speech delivered at the University of Toronto, 7 April 2011)
Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Applicant:

MR GEISLER

Respondent:

MS GEISLER

File Number:

PAC 4720 of 2015

Judgment of:

Judge Harman

Hearing date:

10 December 2018

Date of Last Submission:

10 December 2018

Delivered at:

Parramatta

Delivered on:

10 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Grew

Solicitors for the Applicant:

Legal Aid NSW Wollongong

Counsel for the Respondent:

Ms Conte-Mills

Solicitors for the Respondent:

Rowley & Ross Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Fallon

Solicitors for the Independent Children’s Lawyer:

Mark Whelan Lawyers

ORDERS

By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
The matter is adjourned for further mention and directions to 11 November 2019 at 12noon.
THE COURT NOTES that upon the matter returning before the Court 11 November 2019 and if all issues are not resolved to finality, the matter will then be advanced to trial as soon can be accommodated and subject to the probable need to obtain an updated Family Report.

EXHIBIT A

BY CONSENT, AND PENDING FURTHER ORDER, IT IS ORDERED:

1.That Order 2 of Orders dated 31 March 2016 and Orders 1 to 3 of Orders dated 12 October 2016 be discharged.
2.That the children, [X] born … 2011 and [Y] born … 2014, shall live with the mother.
3.That the children shall spend time with the father as follows:
Stage 1
3.1.For a period of 3 months, on each alternate Sunday from 1:15pm until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre with the father’s time to be no less than 3 hours), commencing from 18 November 2018;

Stage 2
3.2.Following the conclusion of Order 3.1 and for a period of 3 months, on each alternate Sunday from 11:30am until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover…

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 Geisler and Geisler

Details

AGLC: Geisler and Geisler [2018] FCCA 3959
Case: [2018] FCCA 3959
Decision Date: 10 December 2018

CaseChat Overview and Summary

In the matter of Geisler and Geisler, Judge Harman presided over proceedings concerning parenting arrangements for two children, [X] and [Y]. The dispute involved the father's contact with the children, with the parties seeking to formalise agreed orders.

The court was required to determine the specific terms of parenting orders concerning the children's living arrangements and the father's time with them. This included establishing a phased approach to increasing the father's contact, outlining specific times and durations for this contact, and addressing practical arrangements for changeovers, communication between parents, and restrictions on alcohol consumption.

By consent of the parties and with the agreement of the Independent Children’s Lawyer, the court made orders in accordance with a Minute of Order. These orders stipulated that the children would live with the mother and detailed a staged increase in the father's time with the children, commencing from November 2018 and progressing through various stages over several months, culminating in alternate weekend arrangements. The orders also included provisions for specific days such as Father's Day and Christmas Eve, changeover procedures at a designated contact centre, parental communication protocols, and a prohibition on alcohol consumption by either parent when the children are in their care or in the 12 hours prior. The matter was adjourned for further mention and directions, with a notation that if issues remained unresolved, the matter would be advanced to trial, potentially requiring an updated Family Report.

Orders

Orders of the court

By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.

The matter is adjourned for further mention and directions to 11 November 2019 at 12noon.

THE COURT NOTES that upon the matter returning before the Court 11 November 2019 and if all issues are not resolved to finality, the matter will then be advanced to trial as soon can be accommodated and subject to the probable need to obtain an updated Family Report.

EXHIBIT A

BY CONSENT, AND PENDING FURTHER ORDER, IT IS ORDERED:

1. That Order 2 of Orders dated 31 March 2016 and Orders 1 to 3 of Orders dated 12 October 2016 be discharged.

2. That the children, [X] born … 2011 and [Y] born … 2014, shall live with the mother.

3. That the children shall spend time with the father as follows:

Stage 1

3.1. For a period of 3 months, on each alternate Sunday from 1:15pm until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre with the father’s time to be no less than 3 hours), commencing from 18 November 2018;

Stage 2

3.2. Following the conclusion of Order 3.1 and for a period of 3 months, on each alternate Sunday from 11:30am until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre and with the father’s time to be no less than 5 hours), commencing from 10 February 2019;

Stage 3

3.3. Following the conclusion of Order 3.2 and for a period of 4 months, on each alternate Sunday from 9:30am until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre and with the father’s time to be no less than 7 hours), commencing from 5 May 2019;

Stage 4

3.4. Following the conclusion of Order 3.3 and pending further order, on each alternate weekend from 4:30pm Saturday until 4:30pm Sunday (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate weekend at times as nominated by the Contact Centre and with the father’s time to be no less than 24 hours), commencing from24 August 2019;

Other Times

3.5. From 9:30am until 4:30pm on Father’s Day;

3.6. On 24 December from 12:00noon until 3:00pm;

3.7. Such other times as may be agreed to by the parents in writing from time to time.

4. That the father’s time with the child is suspended on Mother’s Day from 9:30am until 4:30pm.

5. That for the purposes of changeover, changeover is to occur at the Contact Centre in B Location unless otherwise agreed in writing.

6. That the father shall be solely responsible for all costs associated with the Contact Centre facilitating changeover.

7. That in the event that the Contact Centre is unable to facilitate changeover on 24 December as set out in order 3.6, then the father shall spend time with the children from 12:00noon until 3:00pm on the Friday before Christmas Day (and in the event that the Contact Centre is unable to facilitate changeover at such times, at times as nominated by the Contact Centre with the father’s time to be no less than 3 hours).

8. That each party shall contact the Contact Centre within 7 days and thereafter do all things necessary to facilitate changeover of the children occurring at the Contact Centre, including but not limited to attending any appointments.

9. That each party shall be at liberty to telephone the children on a nominated phone number on a day and time as agreed between the parents and failing agreement between 4:30pm until 5:00pm each Wednesday whilst the children is not otherwise in their care, and the other party shall facilitate such calls by ensuring the availability of the children and the availability of a telephone or mobile phone for such purpose.

10. That each party shall inform the other party of their contact telephone number and e-mail address, and advise the other party in writing within 48 hours of any change in these details.

11. That each parent is restrained from consuming alcohol when the children are in their care and 12 hours prior to the children coming into their care.

12. That the parties shall communicate by e-mail correspondence for any parenting issues.

13. That the Final Hearing listed on 10 December 2018 and 11 December 2018 be administratively adjourned to a date in late November/early December 2019 at a date and time suitable to the Court.

NOTATION A: Prior to the children spending overnight time with the father as set out in the Interim Consent Orders above, the father agrees to take a photograph of the bedroom(s) that he intends on the children sleeping in and will cause such photograph to be sent to the mother or mother’s solicitor no less than 7 days prior to such overnight time commencing.

NOTATION B: The parties have agreed to review the current parenting arrangements in late October/early November 2019 by attending a further mediation through Legal Aid NSW.

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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