Keats and Keats - [2015] FCCA 1595

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEATS & KEATS

[2015] FCCA 1595

Catchwords:
FAMILY LAW – Parenting – interim – children separated.

Legislation:
Family Law Act 1975

Applicant:

MR KEATS

Respondent:

MS KEATS

File Number:

SYC 2268 of 2015

Judgment of:

Judge Henderson

Hearing date:

26 May 2015

Date of Last Submission:

26 May 2015

Delivered at:

Sydney

Delivered on:

27 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gutierrez

Solicitors for the Applicant:

Kyle Family Lawyers

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Rowlandson & Co Solicitors

Solicitors for the Independent Children’s Lawyer:

Ms Doring

ORDERS

The parents shall have equal shared responsibility for the children Mr Keats born (omitted) 1999 and Y born (omitted) 2011.
The children shall live with the mother.
Y shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.
Y and X spend time with the father as follows:
(a)From 9am Saturday to 6pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter.
(b)On Y's birthdays if she is not in the father's care, from 3.00pm to 6.00pm.
(c)On Father's Day from 4pm on the Saturday before Father's Day to 4pm Father's Day.
(d)At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2015 and continuing each alternate year thereafter.
(e)At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2016 and continuing each alternate year thereafter.
(f)At any other time as agreed between the parties.
For the purposes of the father spending time with the children in accordance with these orders the mother shall deliver the children to the father at the maternal grandparents place of residence at the commencement of each period and the father shall return the children to the mother at the maternal grandparents place of residence at the conclusion of each period.
The father's time with the children is suspended as follows:
(a)In the event the children are in the father's care on their respective birthdays then the mother shall spend time with the children on their respective birthdays from 3pm to 6pm.
(b)On Mother's Day from 4pm on the Saturday immediately before Mother's Day 4.00pm Mother's Day.
(c)At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2015 and continuing each alternate year thereafter.
(d)At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2016 and continuing each alternate year thereafter.
That the parents are restrained from:
(a)Denigrating the other parent in the presence of or hearing of the children and shall do all things necessary to ensure that children do not hear third parties denigrating the parents.
(b)Physically disciplining the children and shall do all things and act necessary to ensure that no third party physically disciplines the children.
(c)Discussing these proceedings or the breakdown of the parental relationship with the children in the presence of the children or causing or permitting any third party to do so.
Each party must keep…

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 Keats and Keats

Details

AGLC: Keats and Keats [2015] FCCA 1595
Case: [2015] FCCA 1595
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the matter of *Keats and Keats*, heard by Judge Henderson, the dispute concerned parenting orders for two children, X and Y. The parents sought to establish arrangements for the children's living situation, time spent with each parent, and other related matters.

The court was required to determine the terms of parenting orders, including whether the parents should have equal shared responsibility for the children, where the children would live, and the specific arrangements for the children to spend time with each parent. The court also had to consider provisions regarding the communication between parents, the discipline of the children, and the disclosure of medical information.

Judge Henderson made orders for equal shared responsibility for both children, with the children to live with the mother. Specific time arrangements were detailed for the father to spend time with both X and Y, including alternate weekends, birthdays, Father's Day, and Christmas. The orders also included prohibitions against denigrating the other parent, physical discipline of the children, and discussing the proceedings with the children. Further orders mandated the exchange of contact details and notification of any illness or injury to the children, with provisions for the other parent to obtain medical information. These orders were made pursuant to section 65DA(2) of the *Family Law Act 1975*, with particulars of obligations and consequences for contravention set out in an attachment.

Orders

Orders of the court

The parents shall have equal shared responsibility for the children Mr Keats born (omitted) 1999 and Y born (omitted) 2011.

The children shall live with the mother.

Y shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.

Y and X spend time with the father as follows:

(a) From 9am Saturday to 6pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter.

(b) On Y's birthdays if she is not in the father's care, from 3.00pm to 6.00pm.

(d) At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2015 and continuing each alternate year thereafter.

(e) At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2016 and continuing each alternate year thereafter.

(f) At any other time as agreed between the parties.

For the purposes of the father spending time with the children in accordance with these orders the mother shall deliver the children to the father at the maternal grandparents place of residence at the commencement of each period and the father shall return the children to the mother at the maternal grandparents place of residence at the conclusion of each period.

The father's time with the children is suspended as follows:

(a) In the event the children are in the father's care on their respective birthdays then the mother shall spend time with the children on their respective birthdays from 3pm to 6pm.

(b) On Mother's Day from 4pm on the Saturday immediately before Mother's Day 4.00pm Mother's Day.

(c) At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2015 and continuing each alternate year thereafter.

(d) At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2016 and continuing each alternate year thereafter.

That the parents are restrained from:

(a) Denigrating the other parent in the presence of or hearing of the children and shall do all things necessary to ensure that children do not hear third parties denigrating the parents.

(b) Physically disciplining the children and shall do all things and act necessary to ensure that no third party physically disciplines the children.

(c) Discussing these proceedings or the breakdown of the parental relationship with the children in the presence of the children or causing or permitting any third party to do so.

Each party must keep the other informed of his/her current landline, email and mobile telephone number.

That the parties notify each other in the event of any illness or injury occurring to the children whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable to other party to obtain all necessary information concerning the children.

10.

Pursuant to section 65DA(2) 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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