Ginty and Sleith - [2017] FCCA 1330

FEDERAL CIRCUIT COURT OF AUSTRALIA

GINTY & SLEITH

[2017] FCCA 1330

Catchwords:
FAMILY LAW – Parenting – final hearing – parental responsibility – live with and spend time with arrangements with father – overseas travel – telephone communication – costs of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 117
Federal Circuit Court Rules 2001 (Cth), r.21.02

Cases cited:

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713

Jones & Dunkel (1959) 101 CLR 298
Kest & Olsson [2012] FamCA 148
Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1998) FLC 92-840
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103
Re David (No.2) (Costs) (1998) 23 Fam LR 139; (1998) FLC 92-809
Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376
Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376

Applicant:

MR GINTY

Respondent:

MS SLEITH

File Number:

SYC 6655 of 2014

Judgment of:

Judge Monahan

Hearing dates:

29 and 30 March 2017

Date of Last Submission:

13 June 2017

Delivered at:

Sydney

Delivered on:

31 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Robertson Saxton Primrose Dunn

Counsel for the Respondent:

Ms Giacomo

Solicitors for the Respondent:

Gordon & Barry Lawyers

Counsel for the Independent Children's Lawyer:

Ms Stolier

Solicitors for the Independent Children's Lawyer:

Brian Samuel & Associates

ORDERS

THE COURT ORDERS ON A FINAL BASIS THAT:

All interim parenting orders be discharged.
The parties have equal shared parental responsibility for X born (omitted) 2007 and Y born (omitted) 2010 (“the children”).
Subject to the final orders made by consent on 14 June 2017, the children live with and spend time with the father as agreed, and failing agreement as follows:
(a)During each school term until the end of Term 4 in 2018, commencing as at the date of these Orders and in accordance with the current cycle:
(i)In Week 1 from after school Friday until before school Monday, and each alternate weekend thereafter; and
(ii)In Week 2 from after school Wednesday until before school Thursday, and each alternate week thereafter;
(b)During the long summer school holidays following Term 4 commencing in 2017, 2018 and 2019 on a week about basis as agreed, and failing agreement, for the first week in odd numbered years and the second week in even numbered years and alternating each week thereafter;
(c)During the school holidays following Terms 1, 2 and 3 commencing in 2018 and continuing thereafter, for seven (7) consecutive nights as agreed, and failing agreement, for the first half in odd numbered years and the second half in even numbered years;
(d)Commencing Term 1, 2019 and continuing thereafter during each school term:
(i)Commencing 30 January 2019, from after school Wednesday until before school Thursday, and each week thereafter; and
(ii)Commencing 1 February 2019, from after school Friday until before school Monday, and…

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 Ginty and Sleith

Details

AGLC: Ginty and Sleith [2017] FCCA 1330
Case: [2017] FCCA 1330
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the matter of Ginty and Sleith, the court was asked to make final parenting orders concerning two children, X and Y. The dispute involved the arrangements for the children's living arrangements and time spent with each parent.

The court was required to determine the extent of parental responsibility for the children, establish a schedule for when the children would live with and spend time with each parent, and address issues relating to international travel with the children during school holidays. Additionally, the court needed to consider the role of an Independent Children's Lawyer and the costs associated with their appointment.

The court ordered that the parties have equal shared parental responsibility for the children. A detailed schedule was established for the children to live with and spend time with the father, commencing immediately and extending through various school terms and holidays, with specific provisions for alternating weeks and periods. The court also made orders regarding international travel, limiting the duration and requiring notice, and set out conditions for telephone contact during school holidays. The parties were also directed to engage with a professional, Dr. J, for an unspecified period.

Finally, the court ordered the discharge of all interim parenting orders and the appointment of the Independent Children's Lawyer, subject to certain conditions. The father was ordered to pay the costs of the Independent Children's Lawyer. All other extant applications were dismissed.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS THAT:

All interim parenting orders be discharged.

The parties have equal shared parental responsibility for X born (omitted) 2007 and Y born (omitted) 2010 (“the children”).

Subject to the final orders made by consent on 14 June 2017, the children live with and spend time with the father as agreed, and failing agreement as follows:

(a) During each school term until the end of Term 4 in 2018, commencing as at the date of these Orders and in accordance with the current cycle:

(i) In Week 1 from after school Friday until before school Monday, and each alternate weekend thereafter; and

(ii) In Week 2 from after school Wednesday until before school Thursday, and each alternate week thereafter;

(b) During the long summer school holidays following Term 4 commencing in 2017, 2018 and 2019 on a week about basis as agreed, and failing agreement, for the first week in odd numbered years and the second week in even numbered years and alternating each week thereafter;

(c) During the school holidays following Terms 1, 2 and 3 commencing in 2018 and continuing thereafter, for seven (7) consecutive nights as agreed, and failing agreement, for the first half in odd numbered years and the second half in even numbered years;

(d) Commencing Term 1, 2019 and continuing thereafter during each school term:

(i) Commencing 30 January 2019, from after school Wednesday until before school Thursday, and each week thereafter; and

(ii) Commencing 1 February 2019, from after school Friday until before school Monday, and each alternate weekend thereafter;

(e) During the long summer school holidays following Term 4 commencing in 2020 and continuing thereafter, on a week about basis as agreed for the first two weeks, and then on a two week about basis for the next four weeks and failing agreement as to which period, for the first, third and fourth weeks in odd numbered years and the second, fifth and sixth week in even numbered years (noting that the sixth week may be less than seven days).

Unless otherwise agreed, either party have the option to travel with the children outside Australia during the summer school holidays, and the other party shall not unreasonably withhold consent, provided the party wishing to travel shall inform the other party of the intended location and contact details while away and shall give the other party no less than 28 days' notice, and for the purposes of this Order:

(a) In the long summer school holidays commencing in 2018 and 2019 the travel period not exceed 7 days; and

(b) In the long summer school holidays commencing in 2020 and continuing thereafter, the travel period not exceed 14 days.

While the children are in one party’s care during school holiday periods, the other party may telephone the children via mobile not earlier than 6pm and not later than 7pm up to twice per week during that period.

The parties engage with Dr J for such period as Dr J thinks appropriate and for this purpose, the parties have liberty to provide a copy of these orders and Reasons for Judgment to Dr J.

Within three (3) months of the date of these Orders, the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,015.75, less the initial contribution amount being $1,650.00, if already paid.

Subject to Notation B herein, the appointment of the Independent Children’s Lawyer be discharged.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. These orders should be read in conjunction with the orders made by consent on 14 June 2017.

B. The Independent Children’s Lawyer may wish to explain these orders to the children.

C. 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 Annexure A and those 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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