Topel and Topel

[2018] FamCAFC 214

FAMILY COURT OF AUSTRALIA

TOPEL & TOPEL [2018] FamCAFC 214

FAMILY LAW – APPEAL – PARENTING – Spend time orders – Adequacy of reasons – Appeal allowed – Cost certificates issued.

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Topel

RESPONDENT: Ms Topel

FILE NUMBER: PAC 5737 of 2016

APPEAL NUMBER: EA 115 of 2018

DATE DELIVERED: 7 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 7 November 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2018

LOWER COURT MNC: [2018] FCCA 1621

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Livingstone

SOLICITOR FOR THE APPELLANT: Alidenes & Company

COUNSEL FOR THE RESPONDENT: Ms Spain

Orders

1. The appellant is granted leave to amend paragraph 8 of the Notice of Appeal filed 20 August 2018 to include the words “and order 22”.

2. Dispense with any need to file an engrossed Amended Notice of Appeal.

3. The appeal is allowed.

4. Order 21 of the orders made on 25 July 2018 be varied by deleting the word “Friday” and replacing it with the word “Thursday”.

5. The orders of 25 July 2018 are further varied by adding an order that in each odd year the children spend from 6.00pm on Christmas Eve to 11.00am on Christmas Day with the respondent mother.

6. There be no order as to costs.

7. The Court grants to the appellant a costs certificate pursuant to 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 that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

8. The Court grants to the respondent a costs certificate pursuant to 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 that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Topel & Topel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 115 of 2018
File Number: PAC 5737 of 2016

Mr Topel

Appellant

And

Ms Topel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 25 July 2018, Judge Obradovic made a number of parenting orders, most of which were by consent.  Two of the issues that fell for decision by her Honour were the amount of time that the children would spend with the father and the arrangements that needed to be made for Christmas Day.

2. As to the first, in setting out the relative proposals of the parties, the primary judge incorrectly identified the father’s proposal as seeking to have the children spend seven nights per fortnight with him, whereas in fact he was only seeking six.

3. Similarly, the mother’s proposal was incorrectly described as the children spending five nights per fortnight with the father, where in fact she was seeking only four.

4. It is apparent from [11(e)] of the primary judge’s reasons that her Honour considered that “a period longer than five days per fortnight is almost a shared care arrangement”.  Similarly, in [11(g)] of her Honour’s reasons, her Honour spoke favourably of a five day fortnight.  Unfortunately, her Honour made an order that the children spend four nights a fortnight with the father.  The reason why it is four nights as opposed to five nights does not emerge from the reasons.  I am accordingly satisfied that the reasons are inadequate to that extent.

5. Similarly, the effect of her Honour’s reasons is clearly that the children should spend time with both parents on Christmas Day over the years, whereas the orders that were in fact made in effect mean that the children would spend very little, if any, time with their mother on Christmas Day.  Again, that is not explained and the reasons are inadequate to that extent.

6. I am therefore satisfied that error has been established.  The parties accept this to be so and have jointly asked that the orders be varied so as to give effect to what appears to be the intention of the primary judge. I am content to do so.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 7 November 2018.

Legal associate: 

Date:  13 November 2018