Tallant and Kelsey - [2015] FamCA 1190

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY

[2015] FamCA 1190

FAMILY LAW – CHILDREN – Interim parenting – With whom the children spend time – Issue of the extent of the time the children spend with the father.

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Kelsey

INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

FILE NUMBER:

PAC

3364

2013

DATE DELIVERED:

21 December 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Women's Legal Service NSW

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

PJM Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

By consent and until further order the children live with the Mother.
By consent the children spend time with the Father supervised by P Contact Centre or such other supervision service as the parties may agree for a period of three hours on each occasion and the Father is to bear all costs associated with the supervision of the time and that the time is to commence as soon as practicable.
By consent the parties forthwith complete all documents required and do all things required to facilitate the time with the Father commencing.
Such time is to occur once per week on a weekend day or such other day as the parties may agree.
The matter is adjourned to 14 March 2016 at 9:30am for a further consideration of the interim application.

Leave to Approach the List Clerk

Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate noting that the matter has been estimated to be a five day trial.

Trial Directions

Both parties file and serve any amended application or response and updated financial statement upon which they intend to rely by no later than 28 days before the commencement of the trial.
Each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with rule 15.12 of the Family Law Rules 2004, by no later than 28 days before the commencement of the trial.
Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates, list other matters with priority or deal with the matter on an undefended basis.

Subpoenas

Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 14 days before the commencement of the trial and be inspected prior to the first day of hearing.

Liberty to Re-List

The parties and the Independent Children’s Lawyer have liberty…

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 Tallant and Kelsey

Details

AGLC: Tallant and Kelsey [2015] FamCA 1190
Case: [2015] FamCA 1190
Decision Date: 21 December 2015

CaseChat Overview and Summary

This matter came before Hannam J concerning parenting and property disputes between the parties, Tallant and Kelsey. The proceedings involved an interim application and directions for an upcoming five-day trial.

The court was required to determine interim parenting orders and to establish a comprehensive framework for the conduct of the trial. This included setting deadlines for the filing and service of amended applications, financial statements, affidavits of evidence, subpoenas, and outlines of case for both parenting and de facto property matters. The court also addressed the preparation of a joint chronology and a joint trial balance sheet, as well as the notification of superannuation trustees regarding potential splitting orders.

The orders regarding interim parenting arrangements were made by consent. The children were to live with the Mother, and the Father was to spend time with the children under supervision at a designated contact centre, with the Father bearing all associated costs. These arrangements were to commence as soon as practicable and occur once per week. The court also issued detailed trial directions to ensure the efficient progression of the case, including provisions for the cross-examination of a family report writer and the exchange of settlement offers.

The matter was adjourned for further consideration of the interim application, with leave granted to approach the List Clerk for the allocation of trial dates. The court also scheduled a readiness check before a Registrar.

Orders

Orders of the court

By consent and until further order the children live with the Mother.

By consent the children spend time with the Father supervised by P Contact Centre or such other supervision service as the parties may agree for a period of three hours on each occasion and the Father is to bear all costs associated with the supervision of the time and that the time is to commence as soon as practicable.

By consent the parties forthwith complete all documents required and do all things required to facilitate the time with the Father commencing.

Such time is to occur once per week on a weekend day or such other day as the parties may agree.

The matter is adjourned to 14 March 2016 at 9:30am for a further consideration of the interim application.

Leave to Approach the List Clerk

Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate noting that the matter has been estimated to be a five day trial.

Trial Directions

Both parties file and serve any amended application or response and updated financial statement upon which they intend to rely by no later than 28 days before the commencement of the trial.

Each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with rule 15.12 of the Family Law Rules 2004, by no later than 28 days before the commencement of the trial.

Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates, list other matters with priority or deal with the matter on an undefended basis.

Subpoenas

10.

Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 14 days before the commencement of the trial and be inspected prior to the first day of hearing.

Liberty to Re-List

11.

The parties and the Independent Children’s Lawyer have liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

Other Court Proceedings

12.

In the event that the affidavits or documents produced on subpoena reveal any relevant court proceedings (in particular in relation to an Apprehended Violence Order or criminal charges against a party or involving the children) the Independent Children’s Lawyer is to request that the Registrar obtain the relevant documents from the relevant court no less than 14 days prior to the commencement of the hearing.

Notice to Report Writer

13.

As it has been indicated by the parties that they wish to cross-examine Family Report writer Mr R at the final hearing, the Independent Children’s Lawyer shall provide written confirmation to the Mr R of the final hearing dates and his requirement to be available for cross-examination within 14 days of the date of allocation of trial dates.

14.

The Independent Children’s Lawyer has liberty to provide to the Family Report writer each of the parties’ affidavits filed for the purposes of hearing and any witnesses affidavits to be relied upon at trial and in the event that the Independent Children’s Lawyer does so that shall occur no later than 7 days before the commencement of trial.

Joint Chronology: Parenting and Property

15.

The Applicant provide to the Respondent not less than 28 days before the commencement of the trial a draft Chronology setting out the Applicant’s contentions as to relevant dates and matters and the Respondent within a further 14 days insert into that Chronology the Respondent’s responses thereto and the relevant dates and matters contended for by the Respondent.

16.

The Respondent is to cause the completed Chronology to be forwarded to the Court for filing not less than 7 days prior to the commencement of the trial.

Outline of Case: Parenting

17.

Each party file and serve an Outline of Case document not less than 7 days prior to the commencement of the trial setting out:

a. A precise Minute of Orders sought;

b. A list of documents to be read in their case;

c. A brief summary of argument touching upon the matters set out in s 60CC of the Act with reference to the relevant evidence relied upon;

d. A list of authorities to be relied upon.

Joint Trial Balance Sheet

18.

The Applicant provide to the Respondent no later than 28 days before the commencement of trial a draft Joint Trial Balance Sheet setting out the asset pool contended for by the Applicant including assets, liabilities and financial resources and their asserted value and the Respondent within a further 7 days shall insert into that Balance Sheet the Respondent’s contentions as to the asset pool contended for by the Respondent including assets, liabilities and financial resources and their asserted value and return the Joint Trial Balance Sheet to the Applicant no later than 7 days before the commencement of the trial.

19.

In relation to any issue or dispute in the completed Joint Trial Balance Sheet the parties are to footnote their reason for their contention.

20.

The Applicant is to cause the completed Joint Trial Balance Sheet to be forwarded to the Court for filing by no later than 48 hours before the commencement of the trial.

Outline of Case: De Facto

21.

Each party file and serve an Outline of Case document by no later than 7 days before the commencement of trial setting out:

a. A list of documents to be read in their case:

b. A brief summary of argument setting out:

i. The party’s contention as to the percentage contribution based entitlement asserted pursuant to s 90SM(4) and the evidence relied on,

ii. The party’s contention as to any s 90SF(3) percentage adjustment sought, the factors in s 90SF(3) relied on and the evidence relied on;

c. A draft of the order sought to give effect to the overall entitlement asserted; and

d. A list of authorities to be relied upon.

Superannuation/Procedural Fairness

22.

Pursuant to Rule 14.06 of the Family Law Rules 2004 each party seeking a superannuation splitting order binding the Trustee of an eligible superannuation fund shall no later than 28 days before the commencement of trial notify the Trustee in writing of the terms of the order and the date of commencement of the trial.

Readiness Check

23.

The proceedings be listed for a readiness check before a Registrar on a date to be fixed.

Hearing Fee

24.

In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

Offer of Settlement

25.

Not less than 28 days before the commencement of the trial each party shall serve on the other an offer of settlement pursuant to Rule 10.06 of the Family Law Rules 2004 setting out orders to be sought by each of them at trial.

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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