Gray and Catlyn - [2019] FamCA 998

FAMILY COURT OF AUSTRALIA

GRAY & CATLYN

[2019] FamCA 998

FAMILY LAW – CHILDREN – Interim Parenting – Review of a Senior Registrar’s Decision – Where the mother unilaterally relocated with the children – Where the mother seeks orders that the children live with her and spend supervised time with the father at a contact centre – Where the father seeks orders that the children live with him in the former family home and spend supervised time with the mother – Where the Independent Children’s Lawyer proposes that the children live in the former family home with the mother and spend unsupervised time with the father each alternate weekend – Where the mother alleges that the father has sexually abused one of the children – Allegations of family violence, alcohol misuse, drug use and mental health concerns – Where the father contends that supervised time with the mother is necessary to protect the children from coming to believe falsely that he abused one of the children – Orders made that the children live with the mother in the former family home and spend substantial and significant time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D
Family Law Rules 2004 (Cth) r 18.10

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Gray

RESPONDENT:

Mr Catlyn

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

378

2019

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Reilly

SOLICITOR FOR THE APPLICANT:

Bryant McKinnon Lawyers

COUNSEL FOR THE RESPONDENT:

Ms De Vere

SOLICITOR FOR THE RESPONDENT:

Ryan & Seton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Pending further order

The children X and Y are to live with their mother.
The mother is to do everything necessary to make sure that X and Y live with her at B Street, Suburb C (“the family home”), from 10 January 2020.
The father is to move out of the family home by 3 January 2020.
Starting tomorrow and throughout the holidays, the children will spend time with the father every second weekend from 10.00am Saturday until 5.00pm Sunday. The parents will meet at a place they both agree is suitable in D City so that X and Y can be collected by the father and returned to the mother. After the children move to the family home they will be collected and returned by the father at the family home.
After the school year starts the children will spend time during the school term with the father every second weekend from after school Friday until…

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 Gray and Catlyn

Details

AGLC: Gray and Catlyn [2019] FamCA 998
Case: [2019] FamCA 998
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of *Gray and Catlyn*, Hannam J made orders concerning the living arrangements and time spent with the children, X and Y. The dispute involved the parents' arrangements for their children following separation.

The court was required to determine the primary residence of the children, the father's time with the children, and various practical arrangements for the children's care and communication with both parents. The court also addressed the transfer of the case to another court.

Hannam J ordered that the children, X and Y, were to live with their mother at the family home from 10 January 2020, with the father to vacate the premises by 3 January 2020. The orders detailed a schedule for the father's time with the children, including weekend and holiday arrangements, and specified how transitions would occur. Provisions were also made for regular communication between the children and their father via phone or video call, and for the parents to enrol the children in school and childcare. Crucially, the court imposed orders prohibiting disparaging remarks about either parent in front of the children and restricting discussion of the court case, except in relation to time spent with the father. The case was subsequently transferred to the Family Court at Newcastle.

Orders

Orders of the court

Pending further order

The children X and Y are to live with their mother.

The mother is to do everything necessary to make sure that X and Y live with her at B Street, Suburb C (“the family home”), from 10 January 2020.

The father is to move out of the family home by 3 January 2020.

Starting tomorrow and throughout the holidays, the children will spend time with the father every second weekend from 10.00am Saturday until 5.00pm Sunday. The parents will meet at a place they both agree is suitable in D City so that X and Y can be collected by the father and returned to the mother. After the children move to the family home they will be collected and returned by the father at the family home.

After the school year starts the children will spend time during the school term with the father every second weekend from after school Friday until the start of school the following Monday.

When the school year starts the father will pick up Y from school and X from childcare or preschool on the Friday when they are spending time with him and return them to school and childcare/preschool on the following Monday. If either Y or X are not at school or childcare/preschool on those days the drop off and pick up will occur at the family home.

From the April school holidays in 2020 X and Y will spend time with the father for the first half of all school holidays at the end of Terms 1, 2 and 3. This time will start on the last day of term and finish at 5.00pm on the middle Saturday of the holidays.

The parents are both to do everything necessary to enrol the children in school and childcare or preschool for the start of the 2020 school year.

X and Y will speak to their father on the phone or by video call every Wednesday and the father will make the call between 5.00pm and 5.30pm to the mother’s mobile phone. So that the children can take the call the mother is to make sure that her mobile phone is charged and switched on.

(10) The parents are to tell each other about any new mobile phone number.

(11) Both parents are not to say anything critical or insulting about the other parent in front of the children or let the children hear anything like that from anyone else.

(12) Both parents must not speak to X or Y about anything to do with this court case except about when they are to spend time with their father.

(13) This case is transferred to the Family Court at Newcastle.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.