Naczek and Dowler (No. 2) - [2009] FamCA 315

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER (NO. 2)

[2009] FamCA 315

FAMILY LAW – CHILDREN – Time to be spent by father with two children where there is still some uncertainty about his capacity to remain in Australia – Substantial and significant time

Family Law Act 1975 (Cth)

Eddington & Eddington [2007] FamCA 1299

APPLICANT:

Mr Naczek

RESPONDENT:

Ms Dowler

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1222

2006

DATE DELIVERED:

29 April 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC

SOLICITOR FOR THE APPLICANT:

WESTMINSTER LAWYERS

SOLICITOR FOR THE RESPONDENT:

LANDER & ROGERS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

For the purposes of these orders, “the Geelong environs” means an area within a 25 kilometre radius of the Geelong General Post office.
That if the husband is living within the Geelong environs, the children N born … March 1998 and L born … February 2001 live with the husband during school terms, in alternate weeks, commencing on either 7 May 2009 or 14 May 2009 (depending upon whichever is the husband’s next weekend with the children as currently being undertaken), from the conclusion of school on the Thursday until the commencement of school on the following Tuesday morning.
For the purposes of paragraph 2, the husband collect the children from school at the commencement of the period on the Thursday and return them upon the conclusion of the period to school at the commencement of school on the Tuesday.
Paragraph 2 of these orders shall be suspended during all school term holidays, long summer holidays and other special days referred to specifically in these orders and resume thereafter as if it had not been suspended at all by this paragraph.
That to the extent that it is necessary to do so, the husband may provide a copy of these orders to the Principal of the school at which the children attend.
That unless the parties agree in writing otherwise, the husband spend time with the children during one half of all school term holidays hereafter from the conclusion of school on the last day that the children are normally required to attend school until 5 pm on the day which is as close to the mid-point of the holidays as possible.
That the husband spend time with the children for one half of the long summer holidays at times to be agreed and failing agreement, the first half in the holidays that commence in odd-numbered years and the second half in the holidays that commence in even-numbered years.
That for the purposes of calculating one-half of the long summer holidays:
(a)the period 24 December until 26 December (both inclusive) shall be excluded;
(b)the last of day of term shall be excluded and the holidays shall be deemed to commence at 9 am on the first day of the holidays;
(c)the last…

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 Naczek and Dowler (No. 2)

Details

AGLC: Naczek and Dowler (No. 2) [2009] FamCA 315
Case: [2009] FamCA 315
Decision Date: 29 April 2009

CaseChat Overview and Summary

This matter concerned orders made by Justice Cronin regarding the parenting arrangements for two children, N and L. The dispute centred on the specific terms of the children's time with their father, the husband, particularly in relation to his residence within the "Geelong environs," defined as a 25-kilometre radius of the Geelong General Post Office. The orders detailed the practical arrangements for the children's living arrangements during school terms, school holidays, and specific public holidays.

The court was required to determine the precise conditions under which the children would live with the husband during school terms, including the method of collection and return, and how these arrangements would be suspended during school holidays and other special days. Further issues included the division of school term holidays and long summer holidays between the parents, as well as specific arrangements for Father's Day, Christmas, and Mother's Day. The court also needed to address the impact of the husband's residence within the Geelong environs on existing orders.

Justice Cronin's reasoning involved establishing a clear framework for the children's time with each parent, aiming for certainty and practicality. The orders specified that if the husband lived within the Geelong environs, the children would live with him during school terms on alternate weeks, with detailed provisions for collection and return to school. The court also outlined a method for dividing school term holidays and long summer holidays, including specific exclusions and calculation methods for the summer break. Special provisions were made for Father's Day, Christmas, and Mother's Day, with mechanisms for collection and return of the children to the wife's residence. The court also suspended a prior order concerning the husband's obligations during periods he resided within the Geelong environs. Finally, the court incorporated a fact sheet detailing the obligations and consequences of contravening the orders, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

For the purposes of these orders, “the Geelong environs” means an area within a 25 kilometre radius of the Geelong General Post office.

That if the husband is living within the Geelong environs, the children N born … March 1998 and L born … February 2001 live with the husband during school terms, in alternate weeks, commencing on either 7 May 2009 or 14 May 2009 (depending upon whichever is the husband’s next weekend with the children as currently being undertaken), from the conclusion of school on the Thursday until the commencement of school on the following Tuesday morning.

For the purposes of paragraph 2, the husband collect the children from school at the commencement of the period on the Thursday and return them upon the conclusion of the period to school at the commencement of school on the Tuesday.

Paragraph 2 of these orders shall be suspended during all school term holidays, long summer holidays and other special days referred to specifically in these orders and resume thereafter as if it had not been suspended at all by this paragraph.

That to the extent that it is necessary to do so, the husband may provide a copy of these orders to the Principal of the school at which the children attend.

That unless the parties agree in writing otherwise, the husband spend time with the children during one half of all school term holidays hereafter from the conclusion of school on the last day that the children are normally required to attend school until 5 pm on the day which is as close to the mid-point of the holidays as possible.

That the husband spend time with the children for one half of the long summer holidays at times to be agreed and failing agreement, the first half in the holidays that commence in odd-numbered years and the second half in the holidays that commence in even-numbered years.

That for the purposes of calculating one-half of the long summer holidays:

(a) the period 24 December until 26 December (both inclusive) shall be excluded;

(b) the last of day of term shall be excluded and the holidays shall be deemed to commence at 9 am on the first day of the holidays;

(c) the last day of the holidays shall be deemed to be the time 48 hours prior to the morning that the children start term 1.

The husband shall spend time with the children on Fathers’ Day in each year from 10 am to 5 pm.

10.

The husband shall spend time with the children from 11 am on 24 December 2009 until 12 noon on 25 December 2009 and for a similar period in each alternate year thereafter;

11.

The husband shall spend time with the children from 12 noon on 25 December 2010 until 5 pm on 26 December 2010 and for a similar period in each alternate year thereafter.

12.

Any time between the husband and the children shall be suspended during Mothers’ Day in each year from 10 am to 5 pm.

13.

For the purposes of paragraphs 6, 7 ,9, 10 and 11 hereof, the husband shall collect the children from the wife’s residence at the start of the period (except in relation to paragraph 6 which will be at school and paragraph 9 in circumstances where the children are with the husband for the full weekend in any event) and return them to the wife at her residence at the conclusion of the period.

14.

For the purposes of paragraph 12 hereof, if Mothers’ Day falls during the husband’s weekend, he shall return the children to the wife on the morning and collect them from her in the afternoon.

15.

That the children spend time with the wife at all other times not otherwise covered by the orders made on 28 November 2008.

16.

That to the extent that it requires certainty, paragraph 5 (a) of the orders made 28 November 2008 is suspended during any period when the husband is living within the Geelong environs.

17.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and those particulars are included in these orders.

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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