Jallip and Jallip (No. 2) - [2008] FamCA 629

FAMILY COURT OF AUSTRALIA

JALLIP & JALLIP (NO. 2)

[2008] FamCA 629

FAMILY LAW – CHILDREN - With whom a child lives - Relocation

Family Law Act 1975 (Cth)

Family Law (Shared Parental Responsibility) Act 2006 (Cth)

Goode and Goode (2006) FLC 93-286

B and B; Family Law Reform Act 1995 (1997) FLC 92-755

Mazorski v Albright (2007) 37 Fam LR 518

AMS v AIF: AIF v AMS (1999) FLC 92-852

A v A: Relocation Approach (2000) FLC 93-035

H v L (2000) FLC 93-036

U v U (2002) FLC 93-112

Bolitho v Cohen (2005) FLC 93-224

M and S (2007) FLC 93-313

Godfrey and Sanders [2007] FamCA 102

Taylor and Barker (2007) 37 Fam LR 461

Bale v Jenkins [2007] FamCA 809

APPLICANT:

Ms Jallip

RESPONDENT:

Mr Jallip

FILE NUMBER:

SYC

4320

2007

DATE DELIVERED:

6 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O’Ryan J

HEARING DATE:

25 January, 11 March, 1 & 15 April, 5 & 6 May, 28, 29 & 30 August 2008.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

Louise Butt Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Serisier

SOLICITOR FOR THE RESPONDENT:

McBride Harle & Martin Solicitors

Orders

All previous parenting orders and undertakings be and hereby are discharged.
The Mother have sole parental responsibility for each of the children, Y born on … July 2000, and L born on … December 2001.
Each of the Father and the Mother have responsibility for the day-to-day care, welfare and development of the children while the children are in his/her care.
The children live with the Mother and in that regard the Mother may establish a residence for the children in the metropolitan area of Brisbane in Queensland.
The children spend time with the Father as follows:
5.1At any time when both parents are living in the same city, whether Sydney or Brisbane, and within 15 kilometres of the children’s school(s):
5.1.1 In each alternate week, from after school on Thursday until before school on Monday;
5.1.2 For one half of each school term holiday period other than the Christmas holidays being the first half in odd numbered years and the second half in even numbered years;
5.1.3 For two weeks in the Christmas school holiday period being the first two weeks in odd numbered years commencing on the last day of term and the last two weeks in even numbered years concluding on the last Sunday of the holiday period;
5.1.4 For the Greek Orthodox Easter period from after school on the commencing day until 5:00 pm on the concluding day.
5.2At any time when the Mother is living in Brisbane and the Father is living in Sydney:
5.2.1 In the first and third school term holidays for ten consecutive days and failing agreement for the ten days concluding on the last Saturday of the holiday period as the tenth day;
5.2.2 For the Greek Orthodox Easter period from 5:00 pm on the commencing day until 5:00 pm…

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 Jallip and Jallip (No. 2)

Details

AGLC: Jallip and Jallip (No. 2) [2008] FamCA 629
Case: [2008] FamCA 629
Decision Date: 6 August 2008

CaseChat Overview and Summary

This matter concerned parenting orders for two children, Y and L, born in 2000 and 2001 respectively. The proceedings were before O'Ryan J.

The court was required to determine the future parenting arrangements for the children, including issues of parental responsibility, living arrangements, time spent with each parent, and communication between the parents and children. The court also had to consider orders relating to travel arrangements, financial contributions towards costs, and restrictions on the parties' conduct towards the children and in relation to the proceedings.

O'Ryan J discharged all previous parenting orders and undertakings. The court ordered that the Mother have sole parental responsibility for both children, with each parent responsible for the day-to-day care of the children while they are in their respective care. The children were ordered to live with the Mother, who was permitted to establish a residence in the metropolitan area of Brisbane, Queensland. Detailed provisions were made for the children to spend time with the Father, with different arrangements specified depending on whether the parents resided in the same city or in Brisbane and Sydney respectively. These provisions included specific arrangements for school term holidays, Christmas holidays, Greek Orthodox Easter periods, and weekend and mid-week time. The court also made orders regarding travel arrangements between Brisbane and Sydney, including the responsibility for booking and payment of flights, and notification requirements. Further orders addressed telephone communication between the children and their parents, the exchange of personal contact details, and the provision of school-related information. The Father was specifically restrained from denigrating the Mother to the children or discussing the proceedings with them. A note was included regarding the expected conduct of the paternal grandparents. Finally, the court ordered the Father to pay a sum to the Legal Aid Commission of New South Wales for the costs of the Independent Children’s Lawyer and his share of court attendance fees, and the Mother to pay her share of the court attendance fees.

Orders

Orders of the court

All previous parenting orders and undertakings be and hereby are discharged.

The Mother have sole parental responsibility for each of the children, Y born on … July 2000, and L born on … December 2001.

Each of the Father and the Mother have responsibility for the day-to-day care, welfare and development of the children while the children are in his/her care.

The children live with the Mother and in that regard the Mother may establish a residence for the children in the metropolitan area of Brisbane in Queensland.

The children spend time with the Father as follows:

5.1 At any time when both parents are living in the same city, whether Sydney or Brisbane, and within 15 kilometres of the children’s school(s):

5.1.1 In each alternate week, from after school on Thursday until before school on Monday;

5.1.2 For one half of each school term holiday period other than the Christmas holidays being the first half in odd numbered years and the second half in even numbered years;

5.1.3 For two weeks in the Christmas school holiday period being the first two weeks in odd numbered years commencing on the last day of term and the last two weeks in even numbered years concluding on the last Sunday of the holiday period;

5.1.4 For the Greek Orthodox Easter period from after school on the commencing day until 5:00 pm on the concluding day.

5.2 At any time when the Mother is living in Brisbane and the Father is living in Sydney:

5.2.1 In the first and third school term holidays for ten consecutive days and failing agreement for the ten days concluding on the last Saturday of the holiday period as the tenth day;

5.2.2 For the Greek Orthodox Easter period from 5:00 pm on the commencing day until 5:00 pm on the concluding day;

5.2.3 For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years;

5.2.4 For such additional time as the Father wishes to spend with the children in Brisbane for up to one week during each school term PROVIDED THAT the Father gives 14 days notice in writing to the mother of the proposed period and the Mother responds in writing within 48 hours confirming or advising of commitments of the children during the proposed period which cannot be changed AND for the purposes of this order the Father be responsible for ensuring that the children attend school as required and also attend any extra-curricular activities in which they are normally engaged;

5.2.5 For one weekend during each school term in Sydney PROVIDED THAT the Father gives the Mother not less than 14 days notice in writing of the proposed weekend and the Mother confirms in writing within 48 hours.

For the purposes of Orders 5.2.1, 5.2.2, 5.2.3 and 5.2.5 hereof, the children travel between Brisbane and Sydney by air and the Father be responsible for booking and paying for flights from Brisbane to Sydney and the Mother be responsible for booking and paying for flights from Sydney to Brisbane.

The Father notify the Mother in writing of the flight details for any trip by the children from Brisbane to Sydney pursuant to these Orders as soon as tickets are paid for but in any event not less than 28 days before the date of travel, and the Mother within 14 days of receiving flight details from the Father notify the Father in writing of the flight details for the return trip by the children from Sydney to Brisbane.

The parties or either of them may accompany the children on any flight at his or her own expense.

The children have liberal telephone communication with the Father.

10.

The Father ensure that the children have telephone communication with the Mother on at least two occasions during each school holiday period when they are with him.

11.

Each party keep the other advised of their current residential address, contact telephone number(s) and email address.

12.

The Mother keep the Father advised of the school(s) which the children are attending and shall authorise such school(s) to forward to the Father copies of the children’s school reports, order forms for school photos and other information concerning significant events in relation to the children’s education and welfare.

13.

Each party immediately advise the other of any medical emergency, significant illness or hospitalisation involving either of the children.

14.

The Father be and hereby is restrained from the following:

14.1 Denigrating the Mother or speaking about the Mother in a critical or derogatory manner to the children or in their presence or hearing, or allowing any other person to do so;

14.2 Discussing these proceedings or any of the allegations raised in these proceedings with the children or in their presence or hearing.

15.

Note that these orders are made on the basis that neither of the paternal grandparents will say anything to or in the presence of the children which is in any way critical or derogatory of the Mother or undermines her relationship with the children or discuss these proceedings or any of the allegations raised in these proceedings even if this brings the paternal grandparents into conflict with the Father.

16.

Within 28 days, the Father pay to the Legal Aid Commission of New South Wales the total sum of $8,298.40 being the costs of the Independent Children’s Lawyer in the amount of $7,198.40 and the father’s share of Dr W’s court attendance fees in the amount of $1,100.00.

17.

Within 28 days the Mother shall pay to the Legal Aid Commission of New South Wales the sum of $1,100 being her share of Dr W’s court attendance fees.

18.

Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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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