Sloan and Sloan - [2017] FamCA 186

FAMILY COURT OF AUSTRALIA

SLOAN & SLOAN

[2017] FamCA 186

FAMILY LAW – CHILDREN – Substantial and significant time – Where the parties agree they should have equal shared parental responsibility for the children and the children should live with the mother for not less than equal time – Where the father proposed an “equal time” arrangement – Where the interim arrangement, under which the children live with the mother and spend substantial and significant time with the father, has applied for nearly three years – Where the children feel emotionally closer to the mother and the Family Consultant concluded the mother is more child focussed – Where the children’s expressed views were to maintain their primary residence with the mother – Where the children were against an “equal time” arrangement and would most likely resent its implementation – Where an equal time arrangement is not in the children’s best interests – Ordered the children spend “substantial and significant time” with the father

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DA, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZN, 69ZP, 69ZQ, 69ZX

Beckham & Desprez [2015] FamCAFC 247
SCVG & KLD (2014) FLC 93-582

APPLICANT:

Mr Sloan

RESPONDENT:

Ms Sloan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown

FILE NUMBER:

SYC

1444

2014

DATE DELIVERED:

27 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

6, 7, 8 & 9 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Delaney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown

Orders

All former orders in respect of the following children are discharged:
(a)B, born … 2001; and
(b)C, born … 2006.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Each party shall take all reasonable steps to ensure the children spend time with the father as follows, or as otherwise agreed:
(a)During school terms:
(i)Each Tuesday from the conclusion of school until 8.00 pm;
(ii)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the first Friday of each term; and
(iii)Each alternate weekend from the conclusion of school on Friday until 9.00 am on Saturday, commencing on the second Friday of each term.
(b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year.
(c)During the Summer school holidays, for the first half of such holidays when the holidays commence in an odd numbered year and for the second half of such holidays when the holidays commence in an even numbered year.
For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at…

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 Sloan and Sloan

Details

AGLC: Sloan and Sloan [2017] FamCA 186
Case: [2017] FamCA 186
Decision Date: 27 March 2017

CaseChat Overview and Summary

In the matter of *Sloan and Sloan*, Austin J considered applications concerning the parenting arrangements for two children, B and C. The dispute centred on the children's living arrangements, time spent with each parent, and related issues of communication, information sharing, and international travel.

The court was required to determine the appropriate orders for parental responsibility, the children's residence, and the specific time each parent would spend with the children. Further issues included the exchange of information regarding the children's welfare, communication protocols, and restrictions on removing the children from Australia. The court also addressed the costs associated with the Independent Children's Lawyer.

Austin J ordered the discharge of all former orders concerning the children and established equal shared parental responsibility. The children were ordered to live with the mother, with detailed provisions for the father's time during school terms and holidays. The court also made orders regarding the collection and return of the children, the sharing of information about their health and schooling, and communication between the parents and children. Crucially, the parties were restrained from denigrating each other in the children's hearing and from removing the children from Australia without the other's written consent. The father was ordered to pay a portion of the Independent Children's Lawyer's costs, as was the mother, with parties' own costs reserved.

Orders

Orders of the court

All former orders in respect of the following children are discharged:

(a) B, born … 2001; and

(b) C, born … 2006.

The parties shall have equal shared parental responsibility for the children.

The children shall live with the mother.

Each party shall take all reasonable steps to ensure the children spend time with the father as follows, or as otherwise agreed:

(a) During school terms:

(i) Each Tuesday from the conclusion of school until 8.00 pm;

(ii) Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the first Friday of each term; and

(iii) Each alternate weekend from the conclusion of school on Friday until 9.00 am on Saturday, commencing on the second Friday of each term.

(b) During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year.

(c) During the Summer school holidays, for the first half of such holidays when the holidays commence in an odd numbered year and for the second half of such holidays when the holidays commence in an even numbered year.

For the purposes of implementation of Order 4 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at 7.00 pm on the last day preceding the day upon which the children are due to return to school in the new term, and the mid-point is noon on the day halfway between those first and last days.

Order 4 hereof is suspended during the following periods:

(a) From 3.00 pm Christmas Eve until 12.00 noon Christmas Day each year, during which period the children will spend time with the mother.

(b) From 12.00 noon until 8.00 pm each Christmas Day, during which period the children will spend time with the father.

(c) Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

For the purposes of implementing Orders 4 and 6 hereof, the parties shall respectively ensure the children’s:

(a) Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

(b) Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

Each party shall share with the other parent any information regarding the health, emotional well-being or schooling received by them during the time the children or either of them are in their respective care, including medication prescribed and/or taken, changes in behaviour, school newsletters and reports.

Each party shall each inform the other promptly of any illness or injury suffered by the children or either of them requiring hospitalisation or prescription medication and, in the event of the latter, each parent shall ensure that the children or either of them are provided with such medication and that it is administered to them or either of them in accordance with the directions of the treating medical practitioner.

10.

Each party shall notify the other in writing of any change in address and/or telephone number within three (3) days of such change.

11.

Each party is hereby restrained from denigrating the other parent within the hearing of the children or either of them, or discussing these proceedings and/or the parties’ respective financial circumstances, or from allowing any other person to do so within the hearing of the children or either of them.

12.

Each party shall do all such things as may be necessary to ensure that the children or either of them may communicate with the other party at all such reasonable times as the children may reasonably request when they are spending time with the other party and in order to facilitate this, each party shall ensure the children or either of them have available to them a working telephone service and are instructed in the use of such service should the need arise.

13.

Each party shall authorise any treating general practitioner and/or medical specialist to provide any information which the other party may reasonably require concerning the welfare of the children or either of them.

14.

The parties shall forthwith do all acts and things necessary to remove the children’s names from the Airport Watch List.

15.

The parties are restrained from causing or permitting the removal of the children from the Commonwealth of Australia without the written consent of the other.

16.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17.

The father shall pay part of the Independent Children’s Lawyer’s costs of these proceedings, assessed in the sum of $6,490.20, within four months of the date of these orders.

18.

The mother shall pay part of the Independent Children’s Lawyer’s costs of these proceedings, assessed in the sum of $4,840.25, within four months of the date of these orders.

19.

The parties’ costs are reserved for 28 days.

20.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21.

Any and all other outstanding applications for orders pursuant to Part VII of the Family Law Act are dismissed.

Notations

(A) Australia is a State party to:

(a) The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”), and

(b) The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

(B) The children are habitually resident in Australia, in the State of NSW.

(D) These orders provide limited permission for the parties to remove the children from their State of habitual residence to other countries for the purpose of holidays.

(E) Retention of the children away from Australia without the written consent of both parties will constitute a wrongful retention of the children within the meaning of the 1980 Convention.

(F) These orders constitute “measures of protection directed to the protection of the person of the children” within the meaning of the 1996 Convention.

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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