FAMILY COURT OF AUSTRALIA
| KEATS & KEATS | [2016] FamCAFC 156 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim orders concerning time child would spend with him – Where the orders are expressed to be final rather than interim parenting orders – Where orders amended pursuant to s 94(2) of the Family Law Act 1975 (Cth) – Where the grounds of appeal challenge the exercise of discretion, the weight to be given to various factors and application of s 65DAA of the Act – Where the appellant is bound by the conduct of the case before the primary judge – No error demonstrated – Appeal dismissed. FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where the circumstances do not warrant an order for indemnity costs – Appellant to pay the respondent’s costs on a party/party basis. |
| Family Law Act 1975 (Cth): ss 65DAA, 93A(2), 94(2) |
| Beckham & Desprez [2015] FamCAFC 247 Bennett and Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225 Coulton v Holcombe (1986) 162 CLR 1 Gilles & Irby (2016) FLC 93-687 Goode and Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 MRR v GR (2010) 240 CLR 461 Salah & Salah (2016) FLC 93-713 SCVG & KLD (2014) FLC 93-582 SS & AH [2010] FamCAFC 13 University of Wollongong v Metwally(No. 2) (1985) 60 ALR 68 |
| APPELLANT: | Mr Keats |
| RESPONDENT: | Ms Keats |
| INDEPENDENT CHILDREN’S LAWYER: | WMD Law |
| FILE NUMBER: | SYC | 2268 | of | 2015 |
| APPEAL NUMBER: | EA | 93 | of | 2015 |
| DATE DELIVERED: | 16 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Cronin JJ |
| HEARING DATE: | 16 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 May 2015 |
| LOWER COURT MNC: | [2015] FCCA 1595 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Rosic |
| SOLICITOR FOR THE APPELLANT: | Rowlandson & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Kyle Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blackah |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | WMD Law |
Orders
That pursuant to s 94(2) of the Family Law Act 1975 (Cth), Orders 1 to 9 inclusive made by Judge Henderson on 27 May 2015 be varied to substitute “The court orders that” for “Pending further or other order it is ordered that”.
The Application in an Appeal filed on 14 July 2016 to adduce further evidence is dismissed.
The appeal against the orders of Judge Henderson made on 27 May 2015 is dismissed.
The father pay the mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of agreement or assessment.
The application for costs by the Independent Children’s Lawyer is dismissed.
NOTATION
A.In order to give clarity to the orders which apply to the parties and to the children by reason…
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- Keats & Keats [2016] FamCAFC 156
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- [2016] FamCAFC 156
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CaseChat Overview and Summary
The court held that the primary judge's exercise of discretion was not erroneous, and the weight given to various factors was appropriate. The court also held that the application of section 65DAA of the Act was correct. The Full Court found no merit in the father's grounds of appeal and dismissed the appeal. The court further ordered that the father pay the mother's costs of and incidental to the appeal, to be agreed or assessed and paid within twenty-eight days of agreement or assessment.
The court also dismissed the application in an appeal filed on 14 July 2016 to adduce further evidence and the application for costs by the Independent Children’s Lawyer. The court varied the orders made by Judge Henderson on 27 May 2015 to substitute "The court orders that" for "Pending further or other order it is ordered that". Annexure A to these Orders sets out the current interim orders applicable to the parties and the children.
Orders
Orders of the court
1.
That pursuant to s 94(2) of the Family Law Act 1975 (Cth), Orders 1 to 9 inclusive made by Judge Henderson on 27 May 2015 be varied to substitute “The court orders that” for “Pending further or other order it is ordered that”.
2.
The Application in an Appeal filed on 14 July 2016 to adduce further evidence is dismissed.
3.
The appeal against the orders of Judge Henderson made on 27 May 2015 is dismissed.
4.
The father pay the mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of agreement or assessment.
5.
The application for costs by the Independent Children’s Lawyer is dismissed.
NOTATION
A. In order to give clarity to the orders which apply to the parties and to the children by reason of the orders of this Court, Annexure A to these Orders sets out the current interim orders applicable to the parties and the children.
ORDERS OF THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
ANNEXURE A TO ORDERS MADE 16 AUGUST 2016
PENDING FURTHER OR OTHER ORDER IT IS ORDERED THAT:
1. The parents shall have equal shared responsibility for the children [Y] born … 1999 and [X] born … 2011.
2. The children shall live with the mother.
3. [X] shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.
4. [X] and [Y] 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 [the child X’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.
5. 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.
6. 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.
7. 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.
8. Each party must keep the other informed of his/her current landline, email and mobile telephone number.
9. 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.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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