Lyon and Kelsey - [2015] FCCA 1246

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYON & KELSEY

[2015] FCCA 1246

Catchwords:
FAMILY LAW – Parenting – child lives in Canberra with mother – spend time arrangements with father – whether child spends overnight with father – whether father requires supervision – whether changeover service is required –parenting courses – costs sought by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.4, 10G, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65DA, 65DAA, 117

Federal Circuit Court Rules 2001, reg.21.02

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
Kest & Olsson [2012] FamCA 148

Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1998) FLC 92-840
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103
Re David (No.2) (Costs) (1998) 23 Fam LR 139; (1998) FLC 92-809
Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376
Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376

Applicant:

MR LYON

Respondent:

MS KELSEY

File Number:

SYC 4379 of 2012

Judgment of:

Judge Monahan

Hearing date:

2 and 3 February 2015

Date of Last Submission:

3 February 2015

Delivered at:

Sydney

Delivered on:

2 July 2015

REPRESENTATION

Solicitors for the Applicant:

Mr McDonell of McDonell Milne Toltz

Counsel for the Respondent:

Mr Karp

Solicitors for the Respondent:	Robert Balzola and Associates
Counsel for the Independent Children's Lawyer:	Ms Karagiannis
Solicitors for the Independent Children's Lawyer:	NSW Legal Aid

ORDERS

All previous parenting orders in relation to the child of the marriage X born (omitted) 2011 ("X") be discharged.
The parties have equal shared parental responsibility for X.
X live with the mother.
X spend time with the father as agreed or, failing agreement, and unless otherwise stated, in a four-week cycle as follows:
Commencing from the date of these Orders until 26 July 2015:
(a)In week 1, from 10:00am until 5:00pm on Saturday;
(b)In week 2, from 10:00am to 5:00pm on Saturday and from 9:00am until 12 noon on Sunday;
(c)In week 4, from 10:00am until 5:00pm on Saturday and from 9:00am until 11:00am on Sunday;
Commencing on 27 July 2015 until 31 December 2015:
(d)In week 1, from 9:00am until 5:00pm on Saturday;
(e)In week 2, from 10:00am on Saturday until 12 noon on Sunday;
(f)In week 4, from 9:00am on Saturday until 11:00am on Sunday;
Commencing on 1 January 2016 until 31 January 2016:
(g)In week 2, from 10:00am on Saturday, being 9 January 2016, until 12 noon on the following Tuesday;
(h)In week 4, from 10:00am on Saturday, being 23 January 2016, until 12 noon on the following Tuesday;
Commencing on 1 February 2016 until 31 December 2018:
During School Terms:
(i)In week 2, commencing from the second weekend of Term, from 10:00am on Saturday until 12 noon on Sunday;
(j)In week 4, from 9:00am on Saturday until 11:00am on Sunday;
During the School Term Holidays (excluding Term 4) in 2016:
(k)In the event that paragraph 4…

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 Lyon and Kelsey

Details

AGLC: Lyon and Kelsey [2015] FCCA 1246
Case: [2015] FCCA 1246
Decision Date: 2 July 2015

CaseChat Overview and Summary

In this matter before Judge Monahan, the court considered parenting orders concerning a child named X. The dispute involved the arrangements for X's living arrangements and time spent with each parent.

The court was required to determine the specific orders regarding X's parental responsibility, where X would live, and the schedule for X to spend time with the father. Additionally, the court needed to address communication protocols between the parents, the use of social media in relation to X, and arrangements for X's education and extracurricular activities.

The court ordered the discharge of all previous parenting orders concerning X. It established equal shared parental responsibility for X, with X to live with the mother. The father was granted specific time with X, detailed in a complex four-week cycle that evolved over several years, with provisions for school terms and holidays in the Australian Capital Territory. Further orders addressed communication, including telephone and internet contact, the use of a communication book, and restrictions on social media postings. The court also made orders regarding X's childcare and schooling, requiring both parents to engage in specific parenting programs and first aid courses. Provisions were also made for dispute resolution and the father's contribution to the costs of the Independent Children's Lawyer.

Orders

Orders of the court

All previous parenting orders in relation to the child of the marriage X born (omitted) 2011 ("X") be discharged.

The parties have equal shared parental responsibility for X.

X live with the mother.

X spend time with the father as agreed or, failing agreement, and unless otherwise stated, in a four-week cycle as follows:

Commencing from the date of these Orders until 26 July 2015:

(a) In week 1, from 10:00am until 5:00pm on Saturday;

(b) In week 2, from 10:00am to 5:00pm on Saturday and from 9:00am until 12 noon on Sunday;

Commencing on 27 July 2015 until 31 December 2015:

(d) In week 1, from 9:00am until 5:00pm on Saturday;

(e) In week 2, from 10:00am on Saturday until 12 noon on Sunday;

(f) In week 4, from 9:00am on Saturday until 11:00am on Sunday;

Commencing on 1 January 2016 until 31 January 2016:

(g) In week 2, from 10:00am on Saturday, being 9 January 2016, until 12 noon on the following Tuesday;

(h) In week 4, from 10:00am on Saturday, being 23 January 2016, until 12 noon on the following Tuesday;

Commencing on 1 February 2016 until 31 December 2018:

During School Terms:

(i) In week 2, commencing from the second weekend of Term, from 10:00am on Saturday until 12 noon on Sunday;

(j) In week 4, from 9:00am on Saturday until 11:00am on Sunday;

During the School Term Holidays (excluding Term 4) in 2016:

(k) In the event that paragraph 4 (i) and (j) falls within a school holiday period, then that time occur from 10:00am Saturday and conclude at 12 noon on the following Tuesday;

During the Term 4 School Holidays in 2016 and in each of the Term 1, 2 and 3 School Holidays in 2017:

(l) In the event that paragraph 4 (i) and (j) falls within a school holiday period then that time occur from 10:00am Saturday and conclude at 12 noon on the following Thursday;

Commencing on 1 January 2018 until the commencement of the 2018 School Year:

(m) In the event that paragraph 4 (i) and (j) falls within a school holiday period then that time occur from 12 noon Saturday and conclude at 12 noon on the following Saturday;

From the commencement of the 2018 School Year and thereafter:

During the School Term:

(n) Commencing on the first weekend of each term, from 9:00am on Saturday until 11:00am on Sunday (or Monday in the event of a long weekend or a pupil free day) and every four weeks thereafter;

(o) Commencing on the third weekend of each term, and subject to paragraph 6 herein, from 10:00am on Saturday until 12 noon on Sunday (or Monday in the event of a long weekend or a pupil free day) and every four weeks thereafter;

During the School Term Holidays:

(p) For the first half of the Term 1 and Term 3 School Term Holidays, commencing at 12 noon on the day after the conclusion of school and concluding at 12 noon on the mid-point day;

(q) For the whole Term 2 School Term Holidays commencing at 12 noon on the day after the conclusion of school and concluding at 12 noon on the day before the commencement of the next school term;

During the Term 4 School Holidays:

(r) For the Term 4 School Holidays in 2018, on a week-about basis commencing at 12 noon on the first Saturday of the school holidays and concluding at 12 noon on the following Saturday;

(s) For the Term 4 School Holidays in 2019 and in each Term 4 School Holidays thereafter, in odd numbered years for the first half commencing on the first Saturday and in even numbered years for the second half commencing on the mid-point day, with changeovers at 12 noon on the relevant days.

Notwithstanding anything else in these Orders:

(a) In the event that these orders provide for X to spend time with the father on the weekend of Mother's Day, the father's time will take place on the following weekend to enable X to spend the Mother's Day weekend with the mother; and

(b) In the event that Father's Day falls on a weekend when X would be with her mother, X spend time with the father on the weekend of Father's Day in substitution for the following weekend when X would otherwise be spending time with the father;

In relation to paragraph 4(o) herein, in the event the father elects not to spend time with X in Canberra, he is to provide the mother with at least seven (7) days written notice.

Changeover occur as agreed or, failing agreement as follows:

(a) For the purposes of paragraphs 4 (a), (c), (d), (f), (j) and (n), changeovers occur in Sydney at such location, or locations, as nominated by the mother;

(b) For the purposes of paragraphs 4 (b), (e), (i) and (o), changeovers occur in Canberra at such location, or locations, as nominated by the father; and

(c) For the purposes of paragraphs 4 (g), (h), (k), (l), (m), (p), (q), (r) and (s), changeovers at the commencement of such time occur in Sydney at a location as nominated by the mother AND changeovers at the conclusion of such time occur in Canberra at a location as nominated by the father.

Unless otherwise agreed, the father be restrained from allowing non-family members (except for his partner and her children) to stay in his residence overnight when X is staying overnight with him unless a member of his immediate family (or his partner) also stays in the residence overnight.

From 7 August 2015, each party have and facilitate reasonable telephone and/or internet based communication with X when she is not in their respective care on at least two occasions each week as agreed, or failing agreement, on Wednesday and Saturday evenings, and failing agreement as to times between the hours of 6:30pm and 7:00pm AND each party do everything necessary to facilitate that telephone contact.

10.

Each party advise the other as soon as is practicable, in the event of any medical or other emergency relating to X.

11.

Each party keep the other advised of their residential addresses and contact telephone number and email address.

12.

The parties use a communication book for the purposes of exchanging information in relation to X and record any issue relevant to X’s welfare in the communication book to be exchanged between the parties each time X moves from the care of one party to the other, as well as at other times should the need arise, with such communication book to be initially purchased by the mother and replaced by the party with whom X is living or spending time with at the time when the existing communication book is filled.

13.

The parties be restrained from making postings, including posting images, in relation to and of X on social networking websites with the exception of postings which are restricted to friends and family of the parties and X.

14.

Within seven days of the date of these Orders, the mother authorise the (omitted) Child Care Centre, and any subsequent or alternative day care provider or school that X may in the future attend, to:

(a) Provide to the father all information requested by him;

(b) Authorise the inclusion of the father's name, address and contact details on X's records;

(d) Authorise the release to the father of any circulars or any other notifications which are sent to parents in the normal course.

15.

The father be permitted to attend at the (omitted) Child Care Centre, and at any subsequent or alternate day care provider or school that X may attend from time to time, at times at which parents in the normal course, are invited to attend.

16.

Further to paragraph 1 of the Minute attached to the Orders made on 17 December 2014 and paragraph 3 of the Orders made on 3 February 2015, the mother do all acts and things necessary to register and engage with Marymead Children's Service in Canberra and attend a parenting course as may be recommended by that service.

17.

Within 28 days of the date of these Orders the father contact St John Ambulance Australia to enrol in the “Caring for Kids” First Aid Course at the earliest possible date and thereafter, complete the said course and following completion, provide the mother with a copy of the Statement of Attendance as evidence of completion within 7 days of receipt.

18.

The parties participate in family dispute resolution with a person authorised under s.10G of the Family Law Act in the event of a dispute about the interpretation, implementation or enforcement of these orders or before any application is made to a court for a variation of these orders.

19.

The father pay to Legal Aid NSW the sum of $4,145.20 by way of instalments of $172.72 per month payable over 24 months from the date of these Orders provided he makes the first instalment payment to Legal Aid NSW by no later than 4:00pm on 31 July 2015 on account of the costs of the Independent Children's Lawyer.

20.

The appointment of the Independent Children's Lawyer be discharged.

21.

All extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) All references to School Terms and School Holidays herein relate to gazetted periods in the Australian Capital Territory.

(B) Pursuant to ss.65DA(2) and 62B 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 Annexure A and those particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.