SEGURA & PERRIS - [2019] FCCA 2556

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEGURA & PERRIS

[2019] FCCA 2556

Catchwords:
FAMILY LAW – Parenting – interim hearing – final orders made in 2013 – substantial and significant time – parental responsibility – whether an order should be made for the children to spend substantial and significant time with each of their parents.

Legislation:

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

Child Support (Registration and Collection) Act 1988 s. 116(2).

Cases cited:

Goode & Goode (2006) FLC 93-286.

Mazorski & Albright (2007) 37 FLR 518.

Godfrey & Sanders (2007) 208 FLR 287.

M & S (formerly E) (2007) FLC 93-313.

Tait & Densmore [2007] FamCA 1383.

McCall & Clark (2009) FLC 93-405.

MRR & GR [2010] HCA 4.

Marvel & Marvel (2010) 43 Fam LR 348.

Chapa & Chapa (2013) FLC 93-538.

Banks & Banks (2015) FLC 93-637.

Bondelmonte v Bondelmonte (2017) 259 CLR 662.

Applicant:

MR SEGURA

Respondent:

MS PERRIS

File Number:

SYC 5148 of 2010

Judgment of:

Judge Morley

Hearing date:

8 May 2019

Date of Last Submission:

8 May 2019

Delivered at:

Sydney

Delivered on:

19 September 2019

REPRESENTATION

Mr Segura appeared in person as the Applicant

Ms Perris appeared in person as the Respondent

Solicitors for the Independent Children's Lawyer:

Ms Smith of Katie Smith Solicitor

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Subject only to order 2, the child X, born … 2007 (“X”), is to remain enrolled at and attending B High School.
In the event that the child X notifies the Applicant father, the Respondent mother and the Independent Children’s Lawyer that he wishes to change from B High School to Suburb T High School, then the parties must do all things necessary to enrol X in, and ensure his attendance at, Suburb T High School.
In the event that X requests of either parent that they facilitate his communication with the Independent Children’s Lawyer so as to express his wish pursuant to order 2, then that parent will do all things necessary to so facilitate communication between X and the Independent Children’s Lawyer for that purpose.
For the balance of the 2019 school year the children Y, born … 2008 (“Y”), and Z, born … 2011 (“Z”), will continue to be enrolled at and attending C Public School.
Each of the parents is to do all things necessary to enrol both Y and Z in D Public School for the 2020 school year, and to ensure their attendance at that school for the 2020 school year and thereafter, until further order.
Order 4.4.2 of the “Terms of Settlement” forming part of orders made on 15 March 2013 is discharged.
The children spend time with their father each week during school terms from the end of school/after-school care on Wednesday until the commencement of school on Thursday.
Notwithstanding any other order, on the weekends that the children would be with the mother and X has a sports event or fixture, then the…

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.

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Details

AGLC: SEGURA & PERRIS [2019] FCCA 2556
Case: [2019] FCCA 2556
Decision Date: 19 September 2019

CaseChat Overview and Summary

In the matter of *SEGURA & PERRIS*, heard before Morley J, the dispute concerned parenting orders for children. Final orders had been made in 2013, and the current proceedings involved an interim hearing to determine whether the children should spend substantial and significant time with each of their parents.

The central legal issue before the court was whether to make an order for the children to spend substantial and significant time with each of their parents, in accordance with the Family Law Act 1975 (Cth). This required the court to consider the best interests of the children as paramount.

Morley J applied the principles of the Family Law Act 1975 (Cth) concerning parenting orders. The court considered the meaning of "substantial and significant time" and how it relates to the parental responsibility of each parent. The decision would have turned on the specific evidence presented regarding the children's circumstances and the capacity of each parent to facilitate meaningful time with the children.

Orders