PALMER & CROSSMANN - [2014] FCCA 2378

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER & CROSSMANN

[2014] FCCA 2378

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – two young children below school age – appointment of independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MS PALMER

Respondent:

MR CROSSMANN

File Number:

SYC 6195 of 2014

Judgment of:

Judge Scarlett

Hearing date:

10 October 2014

Date of Last Submission:

10 October 2014

Delivered at:

Sydney

Delivered on:

10 October 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Meadth

Solicitors for the Applicant:

Alexanders Lawyers

Solicitor for the Respondent:

Mr Ndou

Solicitors for the Respondent:

Bazzi Lawyers

ORDERS

UNTIL FURTHER ORDER

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.
The children X and Y are to live with the Applicant Mother.
The children are to spend time with the Father as follows:
(a)From 10:00am until 4:00pm each Wednesday until such time as each of the children commences to attend school;
(b)from 9:00am on Saturday to 5:00pm on Sunday each alternate weekend commencing on Saturday 18 October 2014;
(c)from 2:00pm on Christmas Day until 5:00pm on Boxing Day; and
(d)At such other times as the parties shall agree
For the purposes of the above Order, the Father is to collect the children from the Mother’s residence at the commencement of his time with them and the Mother is to collect the children from the Father’s residence at the conclusion of his time with them.
The parties must do all acts and things and sign all documents as shall be necessary to enrol the child X at (omitted) Public School in time for the commencement of school at the start of Term 1 in 2015.
Each parent must attend a parenting after separation course and provided evidence to the other party of their enrolment in and successful completion of such course within six (6) months of the date of this Order.
The interests of the children X born (omitted) 2009 and Y born (omitted) 2011 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid New South Wales is requested to provide such representation.
Within fourteen (14) days of the date of these Orders each party must forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

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

FEDERAL CIRCUIT COURT
OF…

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 PALMER & CROSSMANN

Details

AGLC: Palmer and Crossmann [2014] FCCA 2378
Case: [2014] FCCA 2378
Decision Date: 10 October 2014

CaseChat Overview and Summary

In PALMER & CROSSMANN, heard by Judge Scarlett, the dispute concerned parenting arrangements for two children, X and Y. The Applicant Mother and Respondent Father sought orders regarding the children's living arrangements, time spent with each parent, and other related matters.

The court was required to determine the most appropriate orders for the children's welfare, specifically addressing issues of parental responsibility, the children's residence, and the nature and extent of time each parent would spend with them. Further considerations included the practical arrangements for the children's schooling and the need for independent legal representation for the children.

The court made orders establishing equal shared parental responsibility for the children. The children were to live with the Applicant Mother, with specific provisions for the Respondent Father to spend time with them on Wednesday afternoons, alternate weekends, and during the Christmas period. The orders also mandated that both parents attend a parenting after separation course and that the children's interests be independently represented by a lawyer appointed under section 68L of the *Family Law Act 1975*. The court further directed the parties to provide relevant documents to the appointed Independent Children's Lawyer and granted the lawyer leave to issue subpoenas without charge.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

The children X and Y are to live with the Applicant Mother.

The children are to spend time with the Father as follows:

(a) From 10:00am until 4:00pm each Wednesday until such time as each of the children commences to attend school;

(b) from 9:00am on Saturday to 5:00pm on Sunday each alternate weekend commencing on Saturday 18 October 2014;

(d) At such other times as the parties shall agree

For the purposes of the above Order, the Father is to collect the children from the Mother’s residence at the commencement of his time with them and the Mother is to collect the children from the Father’s residence at the conclusion of his time with them.

The parties must do all acts and things and sign all documents as shall be necessary to enrol the child X at (omitted) Public School in time for the commencement of school at the start of Term 1 in 2015.

Each parent must attend a parenting after separation course and provided evidence to the other party of their enrolment in and successful completion of such course within six (6) months of the date of this Order.

The interests of the children X born (omitted) 2009 and Y born (omitted) 2011 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid New South Wales is requested to provide such representation.

Within fourteen (14) days of the date of these Orders each party must forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

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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