SLATER & SLATER - [2019] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLATER & SLATER

[2019] FCCA 2069

Catchwords:
FAMILY LAW – Parenting – interim Orders – time child should spend with parents – where changeover should take place – best interests of the child – not in best interests of the child to spend equal time with the parents – not in best interests of the child to spend substantial and significant time with both parents.

Legislation:

Family Law Act 1975 (Cth), ss.60, 61, 64, 65

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC

MRR v GR [2010] HCA 4

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Applicant:

MR SLATER

Respondent:

MS SLATER

File Number:

MLC 2931 of 2018

Judgment of:

Her Honour Judge C. E. Kirton QC

Hearing date:

16 October 2018

Date of Last Submission:

16 October 2018

Delivered at:

Melbourne

Delivered on:

31 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Scriva

Solicitors for the Applicant:

Dorota Sokolowski

Counsel for the Respondent:

Ms Foong

Solicitors for the Respondent:

Peninsula Community Legal Centre

ORDERS

Orders 2 and 6 of the Consent Orders made on 12 July 2018 be discharged.

UNTIL FURTHER ORDER:

The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child [X], born on … 2015 ([X]).
[X] shall commence spending time with the Father:
(a)Pursuant to Order 4(a)(i) from Friday 2 August 2019 for a period of six months.
(b)Pursuant to Order 4(a)(ii) from Friday 7 February 2020.
(c)Pursuant to Order 4(b) from Friday 9 August 2019.
On alternating weeks, [X] spend time and communicate with the Father as follows:
(a)In week one:
(i)From Friday 8:30 am until Saturday 5:30 pm and each alternate Friday thereafter.
(ii)From Friday 8:30 am until Sunday 5.30 pm and each alternate Friday thereafter.
(b) In week two, from Friday 8:30 am until 5:30 pm that day.
(c)As may otherwise be agreed between the Mother and the Father in writing (including text and email).
Changeovers that do not take place at childcare shall take place at the Suburb J Police Station.
The Father be at liberty to communicate with [X] by telephone, Skype, FaceTime or video call equivalent each Tuesday from 6:30 pm to 7:00 pm, with the Mother to facilitate such communication by answering the call (if necessary), but otherwise the Mother shall not remain present during the call and the Mother shall afford [X] privacy during the call, with calls not to exceed 30 minutes.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these…

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 SLATER & SLATER

Details

AGLC: SLATER & SLATER [2019] FCCA 2069
Case: [2019] FCCA 2069
Decision Date: 31 July 2019

CaseChat Overview and Summary

In the matter of SLATER & SLATER, Her Honour Judge C. E. Kirton QC of the Federal Circuit and Family Court of Australia considered interim parenting orders concerning a child born in 2015. The dispute involved the father's application to vary existing consent orders, specifically regarding the time the child would spend with each parent and the location of changeovers. The court was tasked with determining whether the existing arrangements, or proposed modifications, were in the best interests of the child.

The central legal issues before the court were whether it was in the child's best interests to spend equal time with both parents, and whether it was in the child's best interests to spend substantial and significant time with both parents. The court also had to consider the appropriate arrangements for the child's time with the father, including the frequency and duration of contact, and the location for changeovers between parents.

Her Honour determined that, based on the evidence before her, it was not in the child's best interests to spend equal time with both parents, nor was it in the child's best interests to spend substantial and significant time with both parents. The court applied the principles of the *Family Law Act 1975* (Cth), focusing on the paramount consideration of the child's best interests. The court made interim orders discharging previous consent orders and establishing a new schedule for the child to spend time with the father, including specific days and alternating weeks. Furthermore, the court ordered that changeovers, unless occurring at childcare, must take place at a designated police station. The father was also granted liberty to communicate with the child via video calls on a specified day each week, with provisions for privacy and facilitation by the mother.

Orders

Orders of the court

Orders 2 and 6 of the Consent Orders made on 12 July 2018 be discharged.

UNTIL FURTHER ORDER:

The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the child [X], born on … 2015 ([X]).

[X] shall commence spending time with the Father:

(a) Pursuant to Order 4(a)(i) from Friday 2 August 2019 for a period of six months.

(b) Pursuant to Order 4(a)(ii) from Friday 7 February 2020.

On alternating weeks, [X] spend time and communicate with the Father as follows:

(a) In week one:

(i) From Friday 8:30 am until Saturday 5:30 pm and each alternate Friday thereafter.

(ii) From Friday 8:30 am until Sunday 5.30 pm and each alternate Friday thereafter.

(b) In week two, from Friday 8:30 am until 5:30 pm that day.

Changeovers that do not take place at childcare shall take place at the Suburb J Police Station.

The Father be at liberty to communicate with [X] by telephone, Skype, FaceTime or video call equivalent each Tuesday from 6:30 pm to 7:00 pm, with the Mother to facilitate such communication by answering the call (if necessary), but otherwise the Mother shall not remain present during the call and the Mother shall afford [X] privacy during the call, with calls not to exceed 30 minutes.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.