LENOY & WATTS - [2011] FMCAfam 1464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LENOY & WATTS

[2011] FMCAfam 1464

FAMILY LAW – Children – parenting orders – interim orders – application to vary earlier parenting orders – best interests of the child – child a girl aged almost 4 years – time spent with father over Christmas – block time.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631
Watts & Lenoy [2010] FMCAfam 1460

Applicant:

MR LENOY

Respondent:

MS WATTS

File Number:

SYC 3964 of 2009

Judgment of:

Scarlett FM

Hearing date:

20 December 2011

Date of Last Submission:

20 December 2011

Delivered at:

Sydney

Delivered on:

20 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Doolan Wagner & Callaghan

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Barkus Doolan Kelly

ORDERS

UNTIL FURTHER ORDER

Orders 3 and 14 made by the Family Court of Australia at Sydney on 24 September 2009 are suspended.
The child [X] born [in] 2008 is to spend time with the Father as follows:
(a)From 9:00am until 5:00pm on Christmas Eve 24 December 2011;
(b)From 8:00am until 1:00pm on Christmas Day 25 December 2011;
(c)From 8:00am until 5:00pm on Boxing Day 26 December 2011;
(d)From 9:00am to 6:00pm on Saturday 14 January 2012;
(e)From 9:00am to 6:00pm on Sunday 15 January 2012;
(f)From 9:00am to 6:00pm on Monday 16 January 2012;
(g)From 9:00am to 6:00pm on Friday 20 January 2012;
(h)From 9:00am to 6:00pm on Saturday 21 January 2012 and each alternate Saturday thereafter;
(i)From 9:00am to 6:00pm on Sunday 22 January 2012 and each alternate Sunday thereafter;
(j)From 9:00am to 6:00pm on Tuesday 31 January 2012 and each Tuesday thereafter.
For the purposes of the Father’s time with the child on Saturdays, Sundays and Tuesdays as provided by Orders 2(d) to 2(j) above, the Father is to provide an evening meal to the child.
For the purposes of Order 2 above changeover will take place at each party’s residence unless otherwise agreed with the Father to collect the child [X] from the mother’s residence at the commencement of the periods of time that she spends with him and the Mother is to collect [X] from the Father’s residence at the conclusion of the periods of time that [X] spends with the Father.

IT IS NOTED that publication of this judgment under the pseudonym Lenoy & Watts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3964 of 2009

MR LENOY

Applicant

And

MS WATTS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Father of a little girl called [X] to suspend earlier parenting orders made by the Family Court and to provide for him to spend time with her over the Christmas period and on various occasions during the January school holidays.
The Mother seeks different orders, as she wishes…

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 LENOY & WATTS

Details

AGLC: LENOY & WATTS [2011] FMCAfam 1464
Case: [2011] FMCAfam 1464
Decision Date: 20 December 2011

CaseChat Overview and Summary

The case before the Family Court of Australia in Sydney involves Lenoy and Watts, parents of a child born in 2008. The primary dispute concerns the allocation of time the child, [X], is to spend with the father. This matter was initially addressed by two orders made by the Family Court on 24 September 2009. The court was called upon to review and potentially revise these orders in light of the parties’ current circumstances and the best interests of the child.

The legal issues before the court included whether the existing orders for the child's time with the father should be suspended and if new arrangements should be made. This involved an assessment of the welfare and best interests of the child, considering factors such as the child's age, the relationship between the child and the father, and the practicalities of implementing new visitation schedules. The court also needed to decide on the specifics of the father's visitation time, including the timing and frequency of visits, as well as logistical details such as mealtimes and changeover points.

In its decision, the Family Court suspended two previous orders and introduced new arrangements for the child to spend time with the father during specified periods over the holiday season and into early 2012. The court mandated detailed visitation schedules, ensuring the father has regular and extended periods with the child. Additionally, the court required the father to provide evening meals during these visits and specified that changeovers would occur at each party’s residence unless otherwise agreed. This decision reflects a careful consideration of the child's needs and the practicalities of the parents' living arrangements.

The court's final orders include the suspension of certain previous orders and the establishment of a new visitation schedule for the father, along with specific logistical arrangements for meals and changeover points.

Orders

Orders of the court

UNTIL FURTHER ORDER

Orders 3 and 14 made by the Family Court of Australia at Sydney on 24 September 2009 are suspended.

The child [X] born [in] 2008 is to spend time with the Father as follows:

(a) From 9:00am until 5:00pm on Christmas Eve 24 December 2011;

(b) From 8:00am until 1:00pm on Christmas Day 25 December 2011;

(d) From 9:00am to 6:00pm on Saturday 14 January 2012;

(e) From 9:00am to 6:00pm on Sunday 15 January 2012;

(f) From 9:00am to 6:00pm on Monday 16 January 2012;

(g) From 9:00am to 6:00pm on Friday 20 January 2012;

(h) From 9:00am to 6:00pm on Saturday 21 January 2012 and each alternate Saturday thereafter;

(i) From 9:00am to 6:00pm on Sunday 22 January 2012 and each alternate Sunday thereafter;

(j) From 9:00am to 6:00pm on Tuesday 31 January 2012 and each Tuesday thereafter.

For the purposes of the Father’s time with the child on Saturdays, Sundays and Tuesdays as provided by Orders 2(d) to 2(j) above, the Father is to provide an evening meal to the child.

For the purposes of Order 2 above changeover will take place at each party’s residence unless otherwise agreed with the Father to collect the child [X] from the mother’s residence at the commencement of the periods of time that she spends with him and the Mother is to collect [X] from the Father’s residence at the conclusion of the periods of time that [X] spends with the Father.

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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