FAMILY COURT OF AUSTRALIA
| GILBERT & GILBERT | [2018] FamCA 442 |
| FAMILY LAW – INTERIM PARENTING – Review of Local Court Orders – Hearing de novo – Where the father has appealed orders made by a local court for the children to live with the mother following her unilateral relocation – Where the father seeks that the children return to the area in which he lives – Where the mother and children now live with the maternal grandparents – Where the children have been spending regular time with the father since the Local Court Orders were made – Where the mother claims the father has been more engaged with the children since separation – Where the mother has no family support in the area in which she lived with the father – Where the father has some unspecified physical disabilities – Where the father adduces no evidence as to the impact of these disabilities on his parenting capacity – Where neither party claims the children are at risk of harm in the care of the other parent under the current arrangements – Where the children appear to be settled in the new arrangements – Where it is appropriate for the current arrangements to remain with a fresh set of orders made – Orders made for the children to live with the mother and spend time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 96 |
| AMS and AIF (1999) 24 Fam LR 756 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 George & George [2013] FamCAFC 182 Goode and Goode: [2006] FamCA 1346 Grella & Jamieson [2017] FamCAFC 21 Malcolm & Monroe [2011] FamCAFC 16 Marvel v Marvel (No. 2)[2010] FamCAFC 101 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 MRR v GRR [2010] HCA 4 Smith & Smith [2017] FamCAFC 226 SS & AH[2010] FamCAFC 13 Taylor v Barker (2008) 37 Fam LR 461 |
| APPLICANT: | Mr Gilbert |
| RESPONDENT: | Ms Gilbert |
| FILE NUMBER: | PAC | 614 | of | 2018 |
| DATE DELIVERED: | 15 June 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Brien |
| SOLICITOR FOR THE APPLICANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Stojanovic Solicitors |
Orders
That the orders made by the Local Court at B Town on 25 January 2018 be discharged.
Pending further order
That the mother and father have equal shared parental responsibility for the children X born … 2011 and Y born … 2014 (collectively “the children”).
That the children live with the mother.
That the mother be restrained from relocating the primary residence of the children from the maternal grandparents’ home at Suburb C.
That the mother be restrained…
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- AGLC
- Gilbert and Gilbert [2018] FamCA 442
- Case
- [2018] FamCA 442
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the original orders adequately provided for the children's best interests, particularly concerning the allocation of parental responsibility, the children's living arrangements, and the extent of time the children would spend with each parent. The court also considered the appropriateness of specific restrictions placed on the mother's ability to relocate the children and their schooling.
Foster J discharged the previous orders and made new orders reflecting equal shared parental responsibility. The children were ordered to live with the mother, but she was restrained from relocating their primary residence from the maternal grandparents' home and from removing one child from his current school. The court detailed specific arrangements for the children to spend time and communicate with the father, including provisions for school terms, holidays, and specific dates, as well as regular electronic communication. Both parents were granted liberty to attend significant occasions in the children's lives. The orders also specified a designated venue for the transfer of the children between parents.
Orders
Orders of the court
1.
That the orders made by the Local Court at B Town on 25 January 2018 be discharged.
Pending further order
2.
That the mother and father have equal shared parental responsibility for the children X born … 2011 and Y born … 2014 (collectively “the children”).
3.
That the children live with the mother.
4.
That the mother be restrained from relocating the primary residence of the children from the maternal grandparents’ home at Suburb C.
5.
That the mother be restrained from removing the child X from his present school.
6.
That the children spend time and communicate with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a) during periods equivalent to NSW school terms, each alternate weekend commencing on the first weekend after the resumption of school term from 7pm Friday until 4pm (5pm Daylight Saving Time) Sunday;
(b) during periods equivalent to NSW school holidays for one half of such school holiday periods at the end of term one, term two and term three commencing on the first Saturday of such school holiday period at 11.00 am and concluding on the Sunday in the middle of the holiday period at 4.00 pm (5.00 pm Daylight Saving Time);
(c) during the period equivalent to NSW Christmas school holidays in a week about arrangement as agreed or in default of agreement for a period of seven (7) nights from 11.00 am 26 December to 5.00 pm 2 January then from 11.00 am 9 January to 5.00 pm 16 January then 11.00 am 23 January to 5.00 pm on the day before school resumes;
(d) on the Father’s day weekend from 7.00 pm Friday until 4.00 pm Sunday; and
(e) by way of telephone or electronic communication in the evening of each Monday, Wednesday and Friday that the children are not otherwise with the father and provided always that the mother shall have telephone or electronic communication in the evening of each Monday, Wednesday and Friday that the children are not otherwise with the mother and for the purpose of this Order the mother and father shall both ensure that the children are able to be contacted and are afforded privacy during such times.
7.
That both parents are at liberty to attend on occasions significant to the welfare of the children including occasions relating to schooling, religious education, sport, extracurricular activities and other occasions significant to the welfare of the children.
8.
That for the purposes of the children spending time with the father, the mother or her nominee known to the children is to deliver the children to the father or his nominee known to the children at the commencement of time at the McDonald’s Family Restaurant Suburb D (“the changeover venue”) and the father is to return the children to the mother or her nominee known to the children at the changeover venue at the conclusion of his time.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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