Sellink and Sellink (No. 2)

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FAMILY COURT OF AUSTRALIA

SELLINK & SELLINK (NO. 2) [2017] FamCAFC 151

FAMILY LAW – APPEAL – where the parties filed joint submissions – where those joint submissions provided for the appeal to be allowed – where the primary judge failed to have regard to the family report – where this failure amounted to appealable error – appeal allowed by consent.

FAMILY LAW – COSTS – where there was a demonstrated error of law – where the circumstances justified granting certificates to both parties.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 94AAA, 94AAB, 97(3)
Family Law Rules 2004 (Cth) r 22.38, 10.15A(3)

Sinnott v Firth (No 2) (2013) 51 Fam LR 28
B v B (Costs Certificate) [2007] FamCA 1177
Cramer v Davies (1997) 72 ALJR 146
APPELLANT: Ms Sellink
RESPONDENT: Mr Sellink
INDEPENDENT CHILDREN’S LAWYER
FILE NUMBER: BRC 7638 of 2013
APPEAL NUMBER: NA 13 of 2016
DATE DELIVERED: 4 August 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: In chambers by joint written submissions
JUDGMENT OF: Murphy J
HEARING DATE: In chambers
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 4 February 2016

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bunning
SOLICITOR FOR THE APPELLANT: Hopgood Ganim
FOR THE RESPONDENT: Mr Rosen
SOLICITOR FOR THE RESPONDENT: Rosen Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

  1. That the appeal from Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be allowed.

  2. That Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be discharged.

  3. That the court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

  4. That the court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

Consequent upon the said orders it is further ordered by consent

  1. That the Mother and Father have equal joint parental responsibility for the children X born … 2007 and Y born … 2010.

  2. That each parent have the sole parental responsibility for the day to day care, welfare and development of the children whilst the children are in their respective care.

  3. That the children live with the Mother.

  4. That the Father spend time with and communicate with the children at all such reasonable times as may be agreed to between the parents and failing agreement:

    (a)Each alternate weekend from after school (or 3:00pm,…

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Details
Case
[2017] FamCAFC 151
Decision Date

CaseChat Overview and Summary

In the matter of Sellink and Sellink, the court was tasked with reviewing a range of orders made by Judge Howard on February 4, 2016, which dealt with the custody and care arrangements for two children, X and Y. The primary issue before the court was the appeal of the mother against Orders 1 to 18 of Judge Howard's decision, focusing on the parenting arrangements that were deemed to be in the best interests of the children.

The legal issues before the court included whether the original orders were appropriately made, whether they were in the best interests of the children, and if there were any procedural errors in the way the orders were determined. The court examined the evidence presented and the circumstances of the case, including the welfare and needs of the children, the ability of each parent to provide for the children's needs, and the importance of maintaining a relationship with both parents.

The court found that the original orders were not in the best interests of the children and were made in error. It allowed the mother's appeal, discharged the original orders, and made new orders regarding parental responsibility, living arrangements, and access. The court ordered that the children would live primarily with the mother, with the father having specified access times. The court also detailed arrangements for holidays, special occasions, and communication between the children and their parents. Additionally, the court granted costs certificates to both parties, allowing for the reimbursement of legal costs incurred during the appeal process.

The final orders included provisions for equal joint parental responsibility, specific access arrangements, communication between parents and children, and the discharge of the Independent Children's Lawyer. The new orders reflected a balanced approach to the children's welfare, ensuring that both parents have meaningful involvement in their lives while prioritizing their primary residence with the mother.

Orders

Orders of the court

1.

That the appeal from Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be allowed.

2.

That Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be discharged.

3.

That the court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

4.

That the court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

Consequent upon the said orders it is further ordered by consent

5.

That the Mother and Father have equal joint parental responsibility for the children X born … 2007 and Y born … 2010.

6.

That each parent have the sole parental responsibility for the day to day care, welfare and development of the children whilst the children are in their respective care.

7.

That the children live with the Mother.

8.

That the Father spend time with and communicate with the children at all such reasonable times as may be agreed to between the parents and failing agreement:

(a) Each alternate weekend from after school (or 3:00pm, if it is not a school day) on Thursday until the commencement of school (or 9:00am, if it is not a school day) on Monday;

(b) In the alternate week from after school (or 3:00pm, if it is not a school day) on Thursday to the commencement of school (or 9:00am, if it is not a school day) on Friday; and

(c) One half of each school holiday period as follows:

(i) In relation to the Easter and September holidays, the children will spend the first half of the holiday period in even numbered years and the second half of the holiday period in odd numbered years with the Father and the second half of the holiday period in even numbered years and the first half of the holiday period in even numbered years and first half of the holiday period in odd numbered years with the Mother.

(ii) In relation to the June/July and December/January holidays:

1. the Father spend time with the children for the first week of each holiday period and each alternate week thereafter in even numbered years and the second week and each alternate week thereafter in odd numbered years, subject to (iii) below; and

2. the Mother spend time with the children for the second week of each holiday period and each alternate week thereafter in even numbered years and the first week and each alternate week thereafter in odd numbered years subject to (iii) below.

(iii) for the purposes of Christmas Day, the children will remain in the care of the parent they are currently spending time with in accordance with paragraphs (i) and (ii) above until 1.00pm on Christmas Day.

(iv) That for the purpose of calculating the school holiday period, the school holidays commence after school (or 3:00pm, whichever is the later) on the last day of school term and conclude on the first day of the following term; and

(v) In the event there is an uneven number of nights during the holidays, the Father spend time with the children for an additional night.

General

9.

That if Father’s Day falls on a weekend when the children are not with the Father, then the children will be delivered to the Father at 5:00pm on the Saturday and returned to the Mother at 5:00pm on Sunday.

10.

That if Mother’s Day falls on a weekend when the children are not with the Mother, then the children will be delivered to the Mother at 5:00pm on Saturday and returned to the Father at 5:00pm on Sunday.

11.

That, on the children’s birthdays, the children spend time with the parent they are not already living with:

(a) If the birthday falls during the week, from after school for two (2) hours; and

(b) If the child’s birthday falls on a weekend for four (4) hours.

12.

That on the birthday of each parent, the children spend time with the parent they are not already living with:

(a) If the birthday falls during the week, from after school for two hours; and

(b) If the birthday falls during the weekend, from 9:00am to 5:00pm.

13.

That the parents have reasonable telephone contact with the children while they are in the other parent’s care.

14.

That these Orders authorise any educational institution to which the child or children attend to provide to the Mother or Father, at the Mother's or Father's expense, all reasonable requests for information, including but not limited to, school reports, newsletters, and important school notices.

15.

That these Orders authorise any health professional who attends to the child or children to provide to the Mother or Father, at the Mother's or Father's expense, all reasonable requests for information by the Mother or Father as to the child or children.

16.

That each parent inform the other parent as soon as reasonably practical of any serious illness or hospitalisation of the children.

17.

That each party keep the other informed as to their current residential address, landline telephone number, mobile telephone number, email address (if any), and facsimile transmission number (if any) and they are to notify any change in those details forty eight (48) hours of the change.

18.

That neither party denigrate the other, nor permit any other person to do so, in the presence or hearing of the children.

19.

That neither party discuss these proceedings with the children.

20.

That when handover does not occur at school then the parent with whom the children are next to live with will collect the children from the other parent at the commencement of each period, such that:

(a) where the children are to go into the mother’s care, the Mother will collect the children from the father from Southport Avenue, Mt Tamborine or such other location as agreed in writing between the parties; and

(b) where the Father is to collect the children from the Mother, the Father will collect the children from the Mother’s home or such other location as agreed in writing between the parties.

21.

That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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