FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILBERTSON & MILL | [2017] FCCA 881 |
| Catchwords: FAMILY LAW – Injunction – application to restrain mother’s solicitors from continuing to act. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r.10 |
| Cases cited: Dalton & Dalton [2017] FamCAFC 78 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR GILBERTSON |
| Respondent: | MS MILL |
| File Number: | DUC 439 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 15 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Guest |
| Solicitors for the Applicant: | Kelly Hardie Solicitors |
| Appearing for the Respondent: | Ms Clarke |
| Solicitors for the Respondent: | Austen Brown Boog |
ORDERS
The parties shall have equal shared parental responsibility for the child X born (omitted) 2015.
X shall live with the mother.
X shall spend time with the father as agreed in writing, and in default of agreement as follows:
(a)During the school term, each weekend from 9am Friday until 5.30pm Sunday;
(b)If X is not otherwise with the father, on Father’s Day weekend, from 12pm the Friday before Father’s Day until 12pm the Monday following Father’s Day;
(c)During the NSW gazetted school holiday period for terms 1, 2 and 3 the first week of the school holiday period from 9am the last Friday of the school term until 9am on the Friday the first week of the school holiday period.
(d)During term 4 NSW gazetted school holiday period, in odd years from 12pm 23 December until 12pm 13 January and in even years from 12pm 6 January until 27 January.
The party who does not have care of X be permitted to contact X by telephone/skype/Facetime as agreed, and in default of agreement:
(a)Each Sunday between 7pm and 8pm;
(b)X’s birthday between either 9am and 10am or 7pm and 8pm; and
(c)Christmas Day between either 9am and 10am or 7pm and 8pm.
For the purpose of this order, the party who has care of X will make him available to receive such calls from the other party and will facilitate any other calls that X may wish to make to the other party and ensure X has privacy for the calls.
Changeover unless otherwise agreed in writing shall occur at McDonald’s, (omitted).
Neither party shall denigrate the other party, or a member of that party’s family or household in the presence…
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- AGLC
- GILBERTSON & MILL [2017] FCCA 881
- Case
- [2017] FCCA 881
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to grant the mother's application for relocation and, in the alternative, to make interim parenting orders. The court was also required to consider the application to restrain the mother's solicitors. The overarching consideration in determining parenting orders was the best interests of the child.
The court made orders for equal shared parental responsibility, with X to live with the mother and spend frequent time with the father, including specific weekend and holiday arrangements. The mother was restrained from relocating X's residence beyond an 80-kilometre radius of a specified location. The court also made orders regarding communication, changeovers, and the parties' conduct towards each other and in the presence of X. The application to restrain the mother's solicitors was dismissed, as was the Application in a Case filed on 14 March 2017. The matter was listed for directions.
Orders
Orders of the court
1.
The parties shall have equal shared parental responsibility for the child X born (omitted) 2015.
2.
X shall live with the mother.
3.
X shall spend time with the father as agreed in writing, and in default of agreement as follows:
(a) During the school term, each weekend from 9am Friday until 5.30pm Sunday;
(b) If X is not otherwise with the father, on Father’s Day weekend, from 12pm the Friday before Father’s Day until 12pm the Monday following Father’s Day;
(c) During the NSW gazetted school holiday period for terms 1, 2 and 3 the first week of the school holiday period from 9am the last Friday of the school term until 9am on the Friday the first week of the school holiday period.
(d) During term 4 NSW gazetted school holiday period, in odd years from 12pm 23 December until 12pm 13 January and in even years from 12pm 6 January until 27 January.
4.
The party who does not have care of X be permitted to contact X by telephone/skype/Facetime as agreed, and in default of agreement:
(a) Each Sunday between 7pm and 8pm;
(b) X’s birthday between either 9am and 10am or 7pm and 8pm; and
(c) Christmas Day between either 9am and 10am or 7pm and 8pm.
For the purpose of this order, the party who has care of X will make him available to receive such calls from the other party and will facilitate any other calls that X may wish to make to the other party and ensure X has privacy for the calls.
5.
Changeover unless otherwise agreed in writing shall occur at McDonald’s, (omitted).
6.
Neither party shall denigrate the other party, or a member of that party’s family or household in the presence or hearing of X, or via any social media platform including but not limited to Facebook, nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
7.
The parties shall:
(a) Notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by X whilst in the care of that party.
(b) Notify the other party within 24 hours of changing telephone number and each party shall keep the other informed of their respective Skype/Facetime details, telephone numbers and emergency contact telephone numbers.
(c) Notify the other party not less than 14 days before changing that party’s residential address.
(d) Authorise the day care or preschool attended by X from time to time to release to the other party all information sought by them relating to X’s welfare and progress at day care or preschool, details of upcoming functions or activities and any other information provided by the day care or preschool to parents of children attending the day care or preschool.
(e) Be at liberty to attend day care or preschool functions to which parents are invited.
8.
The mother is restrained from relocating the child’s residence to an area located outside of an 80 kilometre radius of (omitted).
9.
The parties shall attend mediation with an accredited Family Dispute Resolution Practitioner:
(a) as agreed between the parties or failing agreement within 42 days of this Order as nominated by the Law Society of New South Wales Solicitors Settlement Service;
(b) absent agreement within 28 days of today’s date as nominated, on the application of either party, by the President or other office bearer of one of the following:
§ LEADR;
§ Australian Mediation Association;
§ Australian Institute of Arbitrators and Mediators;
§ Law Society of NSW Mediation Unit;
10.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the mediator not less than 7 days prior to the Mediation.
11.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:
(a) Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b) Pay one half of all fees charged by the practitioner;
(c) Attend at such times, dates and places necessary to complete mediation.
12.
The Application in a Case filed 14 March 2017 is dismissed.
13.
List the matter for directions at 11.30am on 26 July 2017.
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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