Osram and Osram - [2018] FCCA 164

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSRAM & OSRAM

[2018] FCCA 164

Catchwords:
FAMILY LAW – Interim hearing concerning children aged 12 & 11 – high conflict – independent children’s lawyer appointed – role of ICL – nature of interim hearing – assessment of section 60CC factors – assessment of risk – consideration of parental unilateral action – which school should children attend prior to final hearing.

Legislation:

Family Law Act 1975, ss.4(1), 4AB(1), 60B, 60CA, 60CC, 61DA, 67ZBB, 68LA, 69ZN

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4

Applicant:

MS OSRAM

Respondent:

MR OSRAM

File Number:

ADC 4121 of 2017

Judgment of:

Judge Brown

Hearing date:

18 January 2018

Date of Last Submission:

18 January 2018

Delivered at:

Adelaide

Delivered on:

25 January 2018

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

SE Lawyers

Counsel for the Respondents:

Mr Laidlaw

Solicitors for the Respondents:

Matthew Mitchell

Counsel for the Independent Children's Lawyer:

Mr Childs

Solicitors for the Independent Children's Lawyer:

Legal Services Commission Noarlunga

ORDERS

Until further or other order:

The children [X] born (omitted) 2005 and [Y] born (omitted) 2006 live with the mother and she be at liberty to re-enrol the children at the (omitted) Primary School for the commencement of the 2018 academic year.
The children spend time with their father as follows:
(a)Each alternate weekend, during the school term, from after school on Friday until 5:00pm the following Sunday (or 5:00pm Monday in the event that day is a public holiday) commencing Friday 9 February 2018;
(b)for the first half of the Easter period in 2018, from after school on Maundy Thursday until 5:00pm on Easter Saturday; and
(c)for the first half of the first term school holiday, from after school on 13 April 2018 until 5:00pm on Saturday, 21 April 2018.
The father is to collect the children from their school, wherever possible, but on occasions when school is not in session, the children are to be exchanged between the parties within the precinct of the (omitted) Police Station.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings or initiate any conversation with the children about what has occurred in court or from permitting any other person to do so.
A copy of these reasons for judgment is to be provided to the Principal of the (omitted) Primary School by the Independent Children’s Lawyer.
Further consideration of this matter is adjourned to 26 April 2018 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4121 of 2017

MS OSRAM

Applicant

And

MR OSRAM

Respondent

REASONS FOR JUDGMENT

Introduction

These are interim proceedings relating to parenting arrangements for two children – [X] born…

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 Osram and Osram

Details

AGLC: Osram and Osram [2018] FCCA 164
Case: [2018] FCCA 164
Decision Date: 25 January 2018

CaseChat Overview and Summary

In the matter of Osram and Osram, heard before Judge Brown, the dispute concerned parenting arrangements for two children, [X] and [Y]. The court was required to determine orders regarding where the children would live, the time they would spend with each parent, and measures to protect the children from the proceedings.

The court's reasoning focused on establishing a stable living arrangement for the children with the mother, including her liberty to re-enrol them at their primary school. It also set out specific arrangements for the children to spend time with their father, detailing alternate weekend contact, and periods during school holidays and Easter. Crucially, the court imposed an injunction restraining both parents from discussing the proceedings or their court appearances with the children, or permitting others to do so, to shield them from the impact of the litigation.

The orders made by the court included that the children live with the mother and spend time with the father on alternate weekends and during specified holiday periods. The father was to collect the children from school where possible, with exchanges to occur at a police station when school was not in session. The injunction preventing discussion of the proceedings with the children was granted, and a copy of the judgment was to be provided to the children's school principal. Further consideration of the matter was adjourned.

Orders

Orders of the court

Until further or other order:

The children [X] born (omitted) 2005 and [Y] born (omitted) 2006 live with the mother and she be at liberty to re-enrol the children at the (omitted) Primary School for the commencement of the 2018 academic year.

The children spend time with their father as follows:

(a) Each alternate weekend, during the school term, from after school on Friday until 5:00pm the following Sunday (or 5:00pm Monday in the event that day is a public holiday) commencing Friday 9 February 2018;

(b) for the first half of the Easter period in 2018, from after school on Maundy Thursday until 5:00pm on Easter Saturday; and

(c) for the first half of the first term school holiday, from after school on 13 April 2018 until 5:00pm on Saturday, 21 April 2018.

The father is to collect the children from their school, wherever possible, but on occasions when school is not in session, the children are to be exchanged between the parties within the precinct of the (omitted) Police Station.

The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings or initiate any conversation with the children about what has occurred in court or from permitting any other person to do so.

A copy of these reasons for judgment is to be provided to the Principal of the (omitted) Primary School by the Independent Children’s Lawyer.

Further consideration of this matter is adjourned to 26 April 2018 at 9:30am.

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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