KEYNES & KEYNES - [2014] FCCA 1453

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEYNES & KEYNES

[2014] FCCA 1453

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the children – parties have two young sons.

EXCLUSION OCCUPATION – Where mother and children moved out of matrimonial home – where mother seeks order that the father should vacate the matrimonial home – means and needs considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 114

Cases cited:
In the Marriage of K. & P. Davis (1982) 8 Fam LR 975
In the Marriage of R.B & J.M Davis (1976) 11 ALR 445; 1 Fam LR 11,522; FLC 90-062
Dean & Dean (1977) FLC 90-213
Fedele & Fedele (1986) 10 Fam LR 1069; FLC 91-744
In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90-442
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
In the Marriage of Harris (1980) 5 Fam LR 852; FLC 90-812
Mullane v Mullane [1983] HCA 4; (1983) 158 CLR 436; 8 Fam LR 777; FLC 91-303
In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90-896
Page & Page (1981) 6 Fam LR 669; FLC 91-025
S & S [2002] FamCA 59

Applicant:

MS KEYNES

Respondent:

MR KEYNES

File Number:

SYC 1742 of 2014

Judgment of:

Judge Scarlett

Hearing date:

27 May 2014

Date of Last Submission:

27 May 2014

Delivered at:

Sydney

Delivered on:

12 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitors for the Applicant:

Shephard & Shephard

Counsel for the Respondent:

Mr Watkins

Solicitors for the Respondent:

GA Lawyers

ORDERS

The Applicant Mother is to be entitled to occupy, to the exclusion of the Respondent Father, the property situated at and known as [omitted] in the State of New South Wales and the Respondent Father is to vacate the said property within two (2) months of the date of these Orders.

UNTIL FURTHER ORDER

The Applicant and the Respondent are to have equal shared parental; responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009.
The children [X] and [Y] are to live with the Applicant Mother.
The children [X] and [Y] are to spend time with the Respondent Father as follows:
(a)During school terms from immediately after school on the Monday afternoon until the commencement of school on the Thursday morning in each week; and
(b)For the first half of the short school holidays in 2014 and all even-numbered years thereafter and the second half of the short school holidays in 2015 and all odd-numbered years thereafter; and
(c)For half of the Christmas/January school holidays in each year on a week-about basis;
(d)From 9:00 am on Christmas Eve until 1:00pm on Christmas Day in 2014 and all even-numbered years thereafter and from 1:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd-numbered years thereafter;
(e)From 5:00pm on…

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 KEYNES & KEYNES

Details

AGLC: Keynes and Keynes [2014] FCCA 1453
Case: [2014] FCCA 1453
Decision Date: 12 June 2014

CaseChat Overview and Summary

In the matter of *Keynes & Keynes*, heard before Judge Scarlett, the applicant mother sought interim parenting orders concerning the parties' two young sons, born in 2008 and 2009. A significant aspect of the dispute involved the mother's request for an order that the father vacate the matrimonial home, with the court considering the means and needs of the parties in relation to this request.

The court was required to determine whether to grant the mother exclusive occupation of the matrimonial home and, if so, for what period. Additionally, the court had to make interim orders regarding parental responsibility, the children's living arrangements, and the time the children would spend with each parent, all within the overarching consideration of the children's best interests.

Judge Scarlett ordered that the applicant mother be entitled to occupy the matrimonial home to the exclusion of the respondent father, with the father to vacate the property within two months of the orders. The court also made orders for equal shared parental responsibility for the children, stipulating that the children were to live with the mother. The judgment then detailed a comprehensive schedule for the children's time with the father during school terms and holidays, including specific arrangements for birthdays and changeovers between parents. Further orders prohibited physical discipline, mandated notification of illness or injury, and restrained derogatory remarks about the other parent in the children's presence.

Orders

Orders of the court

The Applicant Mother is to be entitled to occupy, to the exclusion of the Respondent Father, the property situated at and known as [omitted] in the State of New South Wales and the Respondent Father is to vacate the said property within two (2) months of the date of these Orders.

UNTIL FURTHER ORDER

The Applicant and the Respondent are to have equal shared parental; responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009.

The children [X] and [Y] are to live with the Applicant Mother.

The children [X] and [Y] are to spend time with the Respondent Father as follows:

(a) During school terms from immediately after school on the Monday afternoon until the commencement of school on the Thursday morning in each week; and

(b) For the first half of the short school holidays in 2014 and all even-numbered years thereafter and the second half of the short school holidays in 2015 and all odd-numbered years thereafter; and

(d) From 9:00 am on Christmas Eve until 1:00pm on Christmas Day in 2014 and all even-numbered years thereafter and from 1:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd-numbered years thereafter;

(e) From 5:00pm on the Saturday prior to Father’s Day until the commencement of school on the Monday morning after immediately after Father’s Day;

(f) On each of the children’s birthdays from immediately after school until the commencement of school the following day if the birthday should fall on a school day when the child concerned would not otherwise be spending time with the Father in accordance with these Orders and from 11:00am until 2:00pm if the birthday should fall on a weekend; and

(g) On the Father’s birthday from immediately after school until the commencement of school the following day if the birthday should fall on a day when the children would not otherwise be spending time with the Father.

Changeover between the parents is to take place at the children’s school at all times when the Father’s time commences immediately after school and concludes at the commencement of school and at other times the Father is to collect the children from the Mother’s place of residence at the commencement of his time with the children and the Mother is to collect the children from the Father’s place of residence at the conclusion of his time with the children.

The Father’s time with the children for the first half of the short school holidays in 2014 and all even-numbered years thereafter is to commence immediately after school on the last day of the school term and is to conclude at 5:00pm on the middle Saturday of the school holidays at which time the Father is to return the children to the Mother at her place of residence or where she may otherwise direct.

The Father’s time with the children for the second half of the short school holidays in 2015 and all odd-numbered years thereafter is to commence at 5:00pm on the middle Saturday of the school holidays and is to conclude at 5:00pm on day before the children are required to attend school for the commencement of the next school term and for this purpose the Father is to collect the children from the Mother’s place of residence at the commencement of his time with the children and the Mother is to collect the children from the Father’s place of residence at the conclusion of the time.

Each parent is permitted to speak to the children or either of them by telephone between 5:00pm and 5:30pm on any day when the children are in the care of the other parent and for this purpose the parent wishing to speak to the children is to telephone the mobile telephone of the other parent.

Both parents are restrained from using any physical discipline on either of the children.

10.

Each parent must inform the other of any illness or injury sustained by either one of the children whilst that child is in their care in accordance with these Orders within a reasonable time and if the illness or injury requires hospitalisation or treatment by a medical practitioner the parent must inform the other parent of the name and address of the hospital or medical practitioner.

11.

The parents are restrained from making critical or derogatory remarks about the other parent or members of the other parent’s immediate family in the presence or hearing of the children.

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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