GILROY & FRANK

Case [2019] FCCA 1480


FEDERAL CIRCUIT COURT OF AUSTRALIA

GILROY & FRANK [2019] FCCA 1480
Catchwords:
FAMILY LAW – Parenting arrangements – relocation – shared care arrangements – practise of culture – practise of aboriginal culture.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60B(2)(e), 60B(3), 60CA, 60CC, 60CC(6), 61DA, 61F, 65DAA, 65DAA(5).

Cases cited:

AMS v AIF (1999) 199 CLR 160
Jones & Dunkel (1959) 101 CLR 298
Andrew & Delaine [2009] FamCAFC 182
Burton & Churchin & Anor [2013] FamCAFC 180
Cowling & Cowling (1998) FLC 92-801
Cilento & Cilento (1980) FLC 90-847
Goode & Goode [2006] FamCA 1346
DRH & DKM [2005] FamCA 269
Griffiths (1981) FLC 91-064
Haigh & Holt (Unreported, Full Court of the Family Court of Australia, 23 December 2003)
Harris and Harris (1977) FLC 90-276
Hort & Verran [2009] FamCAFC 214
Marvel& Marvel (No.2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 Fam LR 518
MRR & GR (2010) 240 CLR 461
Rainer & Rainer (1982) FLC 91-239
Sheldon & Weir [2011] FamCAFC 5
Wilcox & Wilcox [2012] FamCAFC 21
Wood (1976) FLC 90-098

Additional sources:

Edward Tylor, Primitive Culture: Research into the Development of Mythology, Philosophy, Religion, Art, and Custom, (John Murray, London, Volume 1,1871).

A.L. Kroeber and Clyde Kluckhohn, ‘Culture: a critical review of concepts and definitions’ (1952) 47 (1) Peabody Museum of Archaeology & Ethnology, Harvard University.

S.H. Schwartz ‘Universals in the content and structure of values: Theory and empirical tests in 20 countries’ (1992) 25 Advances in experimental social psychology 1–65.

G. Hofstede, Cultures and Organizations: Software of the Mind (Harper Collins Business, 1994).

D. Matsumoto Culture and Psychology (Cengage Learning, 6th ed, 1996).

K. Avruch, Culture and Conflict Resolution (United States Institute of Peace Press, 1998)

Bruce Pascoe, Dark Emu (Magabala Publishing, 2014)

Daren Hanlon (2006)  ‘Happiness is just a Chemical’ Fingertips and Mountaintops.

Applicant: MR GILROY
Respondent: MS FRANK
File Number: HBC 73 of 2017
Judgment of: Judge Harman
Hearing date: 8 May 2019
Date of Last Submission: 9 May 2019
Delivered at: Hobart
Delivered on: 9 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Trezise
Solicitors for the Applicant: Tierney Law
Counsel for the Respondent: Ms Mooney
Solicitors for the Respondent: Wallace, Wilkinson & Webster
Counsel for the Independent Children's Lawyer: Mr Fitzgerald
Solicitors for the Independent Children's Lawyer: Legal Aid of Tasmania

ORDERS

  1. All prior parenting orders be discharged.

  2. Ms Frank and Mr Gilroy have equal shared parental responsibility for [X] born … 2012 and [Y] born … 2015 (“the children”).

  3. The children live with the mother.

  4. The father spend time and communicate with the children as follows:

    (a)For the Term I, Term II and Term III school holiday periods (i.e. In April, July and September/October) from the first Saturday of each school holiday period to the Friday immediately prior to the commencement of the following school term;

    (b)For one half of the December/January school holiday period as follows:

    (i)In odd years, commencing 23 December and concluding on the second Friday in the following January;

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Details
AGLC
GILROY & FRANK [2019] FCCA 1480
Case
[2019] FCCA 1480
Decision Date

CaseChat Overview and Summary

In the matter of *Gilroy & Frank*, heard before Judge Harman, the dispute concerned parenting arrangements for two children, [X] born in 2012 and [Y] born in 2015. The proceedings involved an application for relocation and the establishment of shared care arrangements, with a specific consideration for the practice of Aboriginal culture.

The court was required to determine the most appropriate parenting orders for the children, considering the principle of equal shared parental responsibility and the children's best interests. Key issues included the division of time between the parents, the practicalities of facilitating contact, and the importance of maintaining the children's connection to their culture and extended family.

Judge Harman ordered that all prior parenting orders be discharged and that Ms Frank and Mr Gilroy have equal shared parental responsibility for the children. The children were ordered to live with the mother, with the father to spend time and communicate with them during specified school holiday periods and through regular telephone or FaceTime communication. The court also made detailed provisions regarding the collection and return of the children for contact, the sharing of airfare costs, and the facilitation of communication between the children and their father's extended family. Provisions were also made for the exchange of information regarding the children's health and any proposed changes to contact details. The court noted that one child would transition into the mother's care during the July school holidays in 2019 and included particulars of obligations and consequences for contravention of the orders.

Orders

Orders of the court

1.

All prior parenting orders be discharged.

2.

Ms Frank and Mr Gilroy have equal shared parental responsibility for [X] born … 2012 and [Y] born … 2015 (“the children”).

3.

The children live with the mother.

4.

The father spend time and communicate with the children as follows:

(a) For the Term I, Term II and Term III school holiday periods (i.e. In April, July and September/October) from the first Saturday of each school holiday period to the Friday immediately prior to the commencement of the following school term;

(b) For one half of the December/January school holiday period as follows:

(i) In odd years, commencing 23 December and concluding on the second Friday in the following January;

(ii) In even years, commencing 26 December and concluding on the second Friday in the following January;

(iii) Any other holiday period as may be agreed between the parties from time to time;

(c) In the children’s home town upon the father providing the mother with fourteen (14) days’ notice of his intention to spend time with the children with such time not to exceed seven (7) days in each school term and provided the nominated dates do not include 24 – 26 December;

(d) By reasonable telephone or facetime communication whereby the father shall telephone the mother and the mother will facilitate that phone call;

(e) Any other such time as agreed between the parties from time to time.

5.

For the purposes of facilitating school holiday time, the father shall collect the children from the airport closest to the children’s home town at the commencement of the children’s time with the father and the mother shall collect the children from the airport closest to the father’s home at the conclusion of the children’s time with the father.

6.

The cost of the children’s airfares shall be equally shared between the parties and each party shall be solely responsible for the cost of their own airfares to accompany the children to and from their home town.

7.

The mother shall facilitate the exchange of mail, gifts and electronic communication between the children and the father.

8.

The mother shall facilitate reasonable communication between the children and the extended family of the father.

9.

The mother have reasonable telephone or facetime communication with the children during periods in which the children are in the father’s care with the mother to telephone the father and the father will facilitate that phone call.

10.

Each party provide to the other with not less than fourteen (14) days prior written notice of any proposed change of address or landline or mobile telephone number.

11.

Each party shall forthwith inform the other of any significant illness or injury sustained by any of the children whilst in their care and further provide the other with full particulars of the name and contact details of any medical or health professional or hospital from who or at which the children have received or are to receive treatment.

12.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.

13.

All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.

THE COURT NOTES THAT:

A. The child [X] born … 2012 will transition into the mother’s care during the July school holidays in 2019.

B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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