Keles and Keles - [2016] FamCA 1106

FAMILY COURT OF AUSTRALIA

KELES & KELES

[2016] FamCA 1106

FAMILY LAW – CHILDREN – Where the parties agreed to consent orders on the final day of the final hearing – Where the only issues for determination are spend time with arrangements and overseas travel – Where the parties agree that the children should spend equal time with each parent but cannot agree how that should be structured – Where it is in the best interests of the children for the number of changeovers per week to be reduced – Orders made for the children to spend time with each parent on a week-about basis – Where the Court finds it appropriate for the parties to pay a security when seeking to travel to non-Hague Convention countries with the children – Orders made for a security in the sum of $20 000 to be paid.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65DAA

Line & Line (1997) FLC 92-729
Sukova & Allen [2011] FamCA 340

APPLICANT:

Ms Keles

RESPONDENT:

Mr Keles

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Campbelltown Family Law

FILE NUMBER:

PAC

2820

2014

DATE DELIVERED:

21 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

McClelland J

HEARING DATE:

22 - 25 November 2016 and by way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jones of Executive Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Mr Harb of Harb Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

Orders

The children, F born … 2004 and E born … 2007, live with the parents on a week-about basis as follows:

1.1.with the father from after school Friday (or 3.00 pm if not a school day) in the first week until after school Friday (or 3.00 pm if not a school day) the following Friday; and
1.2.with the mother from after school Friday (or 3.00 pm if not a school day) in the second week until after school the following Friday (or 3.00 pm if not a school day).

The children shall spend NSW school holiday time with each of their parents as follows, and during such holiday time, Order 1 above is suspended:

2.1.With the father:
2.1.1.In NSW short school holidays as follows:
2.1.1.1.In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm the following Friday; and
2.1.1.2.In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the following Friday.

2.1.2.In the NSW Christmas holiday period:
2.1.2.1.In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period; and
2.1.2.2.In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

2.2.With the mother:
2.2.1.In NSW…

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 Keles and Keles

Details

AGLC: Keles and Keles [2016] FamCA 1106
Case: [2016] FamCA 1106
Decision Date: 21 December 2016

CaseChat Overview and Summary

The case of *Keles and Keles* concerned parenting orders made by McClelland J regarding the care arrangements for two children, F and E. The dispute centred on the specific terms of the week-about living arrangements for the children during school terms and the division of time during NSW school holidays, including provisions for international travel.

The court was required to determine the precise schedule for the children's residence with each parent during school terms and to establish detailed rules for the division of NSW school holidays between the parents. Furthermore, the court needed to set out the conditions and restrictions under which either parent could travel internationally with the children, including notice periods, itinerary requirements, and security provisions for travel to non-Hague Convention countries.

McClelland J ordered that the children live with each parent on a week-about basis during school terms. For school holidays, a detailed alternating schedule was established for both short holidays and the Christmas period, with specific provisions for even and odd-numbered years. The court also stipulated that NSW school holidays would commence and conclude at specific times relative to school attendance and resumption, with a defined midway point. Regarding international travel, parents were permitted to take the children out of Australia for up to twenty-one days, coinciding with school holidays unless specific school permission was obtained. A minimum of six weeks' written notice, including a full itinerary and contact details, was mandated. Crucially, travel to countries not party to the Hague Convention required the other parent's written consent, or a security deposit of $20,000, which would be forfeited if the travelling parent failed to return the children within seven days of the due date. If a parent took the children for all short school holidays overseas, the children would commence the week-about arrangement with the other parent upon their return and spend an additional week with the non-travelling parent during the Christmas holidays.

Orders

Orders of the court

The children, F born … 2004 and E born … 2007, live with the parents on a week-about basis as follows:

1.1. with the father from after school Friday (or 3.00 pm if not a school day) in the first week until after school Friday (or 3.00 pm if not a school day) the following Friday; and

1.2. with the mother from after school Friday (or 3.00 pm if not a school day) in the second week until after school the following Friday (or 3.00 pm if not a school day).

The children shall spend NSW school holiday time with each of their parents as follows, and during such holiday time, Order 1 above is suspended:

2.1. With the father:

2.1.1. In NSW short school holidays as follows:

2.1.1.1. In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm the following Friday; and

2.1.1.2. In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the following Friday.

2.1.2. In the NSW Christmas holiday period:

2.1.2.1. In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period; and

2.1.2.2. In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

2.2. With the mother:

2.2.1. In NSW short school holidays:

2.2.1.1. In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of require school attendance from 3pm the following Friday; and

2.2.1.2. In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the following Friday.

2.2.2. In the NSW Christmas holiday period:

2.2.2.1. In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period; and

2.2.2.2. In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

For the purposes of these Orders, NSW school holidays are deemed to commence at 3pm on the Friday marking the last day of required school attendance or immediately following and are deemed to conclude at 3pm the Friday immediately preceding the resumption of NSW school term and reach the midway point at 3pm on the Friday closest to the mid-point of the holiday period.

The parents are permitted to take the children out of the Commonwealth of Australia as agreed between them and failing agreement, provided that:

4.1. The proposed travel shall not be for longer than a twenty-one (21) day duration;

4.2. The proposed travel coincides with NSW school holiday periods unless written permission is obtained from the children’s schools for the children to be absent outside the school holiday period, in which case the travel may extend beyond school holidays by not more than five (5) days;

4.3. The parent proposing to travel with the children is to provide to the other parent, no less than six (6) weeks prior to the proposed travel, the following information in writing:

4.3.1. A full itinerary for the proposed travel, with such itinerary to include all information about the proposed travel including the flight/ship details, the date and time of departure and return to Australia, the intended destination, a list of the places the children will be visiting whilst travelling and addresses of any accommodation where the children will be staying whilst travelling and a copy of all relevant hotel bookings; and

4.3.2. contact numbers for the children for the duration of the trip.

Neither parent is permitted to travel with the children to a country which is not subject to the Hague Convention on the Civil Aspects of International Child Abduction without the express written consent of the other parent, subject to payment of a security amount of $20 000 by the parent wishing to travel being deposited into the other parent's solicitor's controlled monies account.

The security deposited into the other parent’s solicitor’s controlled monies account, pursuant to Order 5 above, shall be refunded to the travelling parent within seven (7) days of their return to Australia with the children.

In the event the travelling parent fails to return to Australia with the children, within seven (7) days of their non-return, the security held by the other parent’s solicitor shall be forfeited to the other parent.

Upon a parent travelling overseas with the children pursuant to Order 4 above for all of the short NSW school holidays, the children shall:

8.1. commence living with the other parent pursuant to Order 1 above on the first weekend after the children's return to Australia; and

8.2. live with the non-travelling parent for an additional week in the NSW Christmas holiday period to compensate for the travelling parent having had the children with him/her during their overseas travel.

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

LELLAND J

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Ratio Decidendi

Legal Principle Established

Established by: LELLAND J

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