GILBERTSON & MILL

Case [2017] FCCA 881


FEDERAL CIRCUIT COURT OF AUSTRALIA

GILBERTSON & MILL [2017] FCCA 881

Catchwords:
FAMILY LAW – Interim Parenting – relocation – 2 year old child – mother seeks orders permitting her to relocate with child – best interests assessment – child to live with mother and spend frequent time with father.

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
Goode v Goode (2007) 36 FamLR 422
Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Osferatu & Osferatu [2015] FLC 93-048
Salah & Salah [2016] FamCAFC 100

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

  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…

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Details
AGLC
GILBERTSON & MILL [2017] FCCA 881
Case
[2017] FCCA 881
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the mother for orders permitting her to relocate with the parties' two-year-old child, X. The father sought to restrain the mother's solicitors from continuing to act in the proceedings. The case was heard by Judge Obradovic.

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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