Federal Circuit and Family Court of Australia
(DIVISION 2)
Gilmartin & Oates [2022] FedCFamC2F 1553

File number(s): NCC 2842 of 2020

Judgment of: JUDGE JENKINS

Date of judgment: 15 November 2022

Catchwords: FAMILY LAW – parenting – relocation – where one party lives in NSW and the other in Queensland – child living with non-biological father – DNA testing during the course of proceedings – credit – child’s relationship with siblings – need for child to have stability – encouragement of relationship.

Legislation:
Evidence Act 1995 (Cth) s 140

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)r 10.13 and r 10.14(b)

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

Adamson & Adamson [2014] FamCAFC 232 [66]

AMS v AIF [1999] HCA 26

Godfrey v Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Hall v Hall [1979] FamCA 73

Heath v Hemming (No 2) [2011] FamCA 749

KB & TC [2005] FamCA 458

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

MRR & GR [2010] HCA 4

Taylor v Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 170

Date of last submission/s: 23 August 2022

Date of hearing: 22 – 23 August 2022

Place: Adelaide – by Microsoft Teams

Counsel for the Applicant: Mr Levick

Solicitor for the Applicant: Joplin Lawyers

Counsel for the Respondent: The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Willoughby

Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers
ORDERS

NCC 2842 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GILMARTIN

Applicant

AND:
MS OATES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

15 NOVEMBER 2022

THE COURT ORDERS:
1.All previous orders in relation to X, born in 2013 (“X”) are discharged.
2.The applicant, Mr Gilmartin (“the applicant”) and the respondent, Ms Oates (“the respondent”) have equal shared parental responsibility for X.
3.X live with the applicant.
4.X spend time with the respondent as agreed, but failing agreement:
(a)During the New South Wales (“NSW”) school terms one weekend in each term in the Region B (save and except for the Father’s Day weekend), from after school Friday until 5.00pm Sunday, provided that the respondent notifies the applicant in writing no less than four (4) weeks prior of her availability to travel to spend time with X in the Region B region and the applicant is to confirm within seven (7) days of that notice that X is available to spend time with the respondent that weekend;
(b)During the NSW Term 1, 2 and 3 school holidays from the first Saturday of the holiday period until the second Sunday of the holiday period;
(c)During the Term 4 Christmas school holidays as follows:
(i)In even number years from the first Saturday of the holiday period until 7…

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 Gilmartin & Oates

Details

AGLC: Gilmartin & Oates [2022] FedCFamC2F 1553
Case: [2022] FedCFamC2F 1553
Decision Date

CaseChat Overview and Summary

In the matter of Gilmartin & Oates, the Federal Circuit and Family Court of Australia considered a parenting dispute between the applicant, Mr Gilmartin, and the respondent, Ms Oates, concerning the nine-year-old child, X. The court was required to decide on the primary care arrangement for X, considering the respective proposals of both parties and the relevant legal principles. The legal issues included the best interests of the child, the right of freedom of movement of the parties, and the primary and additional considerations under the Family Law Act 1975 (Cth). The court evaluated the competing proposals, the evidence presented, and the credibility of the witnesses before making its decision.

The court found that it was in the best interests of X to remain in the primary care of Mr Gilmartin, with Ms Oates having visitation rights during school holidays and term time if she were to travel to the Region B. The court concluded that X's best interests would be met by remaining in the Region B, where she has been living for two years, and that the respondent was unlikely to return to the Region B. The court made orders for equal shared parental responsibility, specified visitation arrangements, and ordered the parties to share the costs of X's flights. The court also made orders to facilitate communication between X and both parties, as well as to ensure that the parties maintain each other's contact information. The court ordered the respondent to recontact Mr D and inform him that he may be X's biological father and provide him with a copy of the orders, with Mr D having the liberty to apply to set aside the orders within 28 days. The court certified that the preceding 170 paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.

Orders