MILNER & MATHERLY - [2019] FCCA 2580

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILNER & MATHERLY

[2019] FCCA 2580

Catchwords:
FAMILY LAW – Interim hearing – parenting – parental responsibility – where there is a young child of the relationship – where child spends single overnight occasion per fortnight with non-live with parent – whether overnight time should be suspended – where overseas travel is proposed to Hague Convention nation.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Sun Alliance Insurance Ltd v Massoud [1989] VR 8.
Goode & Goode [2006] FamCA 1346.
M & S (formerly E) [2006] FamCA 1408.
Godfrey & Sanders [2007] FamCA 102.
Mazorski & Albright[2007] FamCA 520.
Tait & Dinsmore [2007] FamCA 1383.
McCall & Clark [2009] FamCAFC 92.
Marvel & Marvel [2010] FamCAFC 101.
MRR & GR [2010] HCA 4.
Vanzin & Vanzin [2014] FamCAFC 245.
Banks & Banks [2015] FamCAFC 36.
Bondelmonte v Bondelmonte (2017) 259 CLR 662.

Applicant:

MR MILNER

Respondent:

MS MATHERLY

File Number:

PAC 360 of 2019

Judgment of:

Judge Morley

Hearing date:

15 August 2019

Date of Last Submission:

11 September 2019

Delivered at:

Sydney

Delivered on:

4 October 2019

REPRESENTATION

The Applicant appeared on his own behalf.

Counsel for the Respondent:

Mr Simpson

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

The parties have equal shared parental responsibility for the child [X], born … 2016.
The child live with his mother.
The child spend time with his father as follows:
(a)Until 11 November 2019:
(i)Each Tuesday from 5:00PM until 7:00PM; and
(ii)Each alternate weekend from 6:00PM on Friday until 5:30PM on Saturday on the weekend on which the mother’s child [C] is not with her;
(b)From 11 November 2019:
(i)Each Tuesday from 5:00PM until 7:00PM; and
(ii)Each alternate weekend from 6:00PM on Friday until 5:30PM on Sunday on the weekend on which the mother’s child [C] is not with her;
(c)On the child’s birthday on … 2020 from 3:00PM until 6:00PM;
(d)On Father’s Day on 6 September 2020, if not otherwise in the father’s care, from 9:00AM until 5:30PM;
(e)Notwithstanding any other Order herein, from 2:00PM on 25 December 2019 until 5:30PM on 26 December 2019;
(f)Notwithstanding any other Order herein, from 12:00PM on Easter Saturday 11 April 2020 until 5:30PM on Easter Sunday 12 April 2020;
(g)After 10 March 2020, for two (2) occasions of four (4) nights holiday time, commencing at 6:00PM on Friday and concluding at 7:30PM on Tuesday, occurring over a weekend when the child would otherwise be in the father’s care pursuant to these Orders, the father to nominate the occasions in writing to the mother no later than two (2) months before an occasion is to commence and to occur at least three (3) months apart;
(h)On the father’s birthday on Tuesday, … 2020 from 9:00AM until 5:30PM;
(i)At such other times as may be agreed between the parents from time to time.
Notwithstanding any other Order herein, the child is to be in…

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 MILNER & MATHERLY

Details

AGLC: MILNER & MATHERLY [2019] FCCA 2580
Case: [2019] FCCA 2580
Decision Date: 4 October 2019

CaseChat Overview and Summary

The parties in this matter were Milner and Matherly, and the dispute concerned interim parenting orders for a young child of their relationship. The application came before Morley J.

The central legal issues before the court were whether the child's existing single overnight occasion per fortnight with the non-live-with parent should be suspended, and whether overseas travel proposed by one of the parents to a Hague Convention nation should be permitted.

Morley J considered the welfare of the child as the paramount consideration. The court's reasoning focused on the potential impact of suspending the overnight contact on the child's relationship with the non-live-with parent, and the implications of overseas travel for the child's ongoing relationship with both parents and the practicalities of future court proceedings. The court applied principles relating to the importance of maintaining meaningful relationships between children and both parents, and the need to ensure the child's best interests are met in the interim period.

The court made orders regarding the interim parenting arrangements, including provisions for the child's time with the non-live-with parent and addressing the proposed overseas travel.

Orders