Traynor & Casey - [2022] FedCFamC2F 1317

Federal Circuit and Family Court of Australia
(DIVISION 2)
Traynor & Casey [2022] FedCFamC2F 1317

File number(s): PAC 3259 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 6 October 2022

Catchwords: FAMILY LAW – Final Parenting – children living separated since 2018 – one child has mild intellectual disability – one child exploring gender and sexuality – whether parents are meeting children’s needs – high parental conflict – whether parents should share parental responsibility – where the children should live – whether the children should live together – time with parent with whom children not primarily residing.

Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Banks & Banks [2015] FamCAFC 36

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 88

Date of hearing: 12 and 13 September 2022

Place: Parramatta

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: John & Co Lawyers

Counsel for the Respondent: Ms Hamilton

Solicitors for the Respondent: T & S Law Firm

Counsel for the Independent Children’s Lawyer: Ms Conti-Mills

Solicitors for the Independent Children’s Lawyer: Harb Lawyers
ORDERS

PAC 3259 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TRAYNOR

Applicant

AND:
MR CASEY

Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

6 October 2022

THE COURT ORDERS THAT:
Live with and Parental Responsibility
1.All previous parenting Orders are discharged.
2.The parents shall have equal shared parental responsibility for the children X born in 2009 (“X”) and Y born in 2010 (“Y”).
3.X shall live with the Father.
4.Y shall live with the Mother.

Spend time
5.X shall spend time with the Mother as agreed between the parents and failing agreement as follows:
(a)For five (5) nights per fortnight from after school or 3pm Wednesday to before school or 9am Monday, with such time to commence on Wednesday 12 October 2022;
(b)For one half of all gazetted school holidays, and failing agreement in the first half in odd numbered years and in the second half in even numbered years, with such time being spent with Y;
(c)From 9am to 5pm on Mother’s Day unless already spending time with the Mother;
(d)From 9am to 5pm on the Mother’s birthday unless already spending time with the Mother and if it falls on a school day then from after school or 3pm to 7pm;

6.Y shall spend time with the Father as agreed between the parents and failing agreement as follows:
(a)For five (5) nights per fortnight from after school or 3pm Friday to before school or 9am Wednesday, with such time to commence on Friday 21 October 2022;
(b)For one half of all gazetted school holidays, and failing agreement in the second half in odd numbered years and in the first half in even numbered years, with such time being spent with X;
(c)From 9am to 5pm on Father’s…

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 Traynor & Casey

Details

AGLC: Traynor & Casey [2022] FedCFamC2F 1317
Case: [2022] FedCFamC2F 1317
Decision Date

CaseChat Overview and Summary

These are parenting proceedings concerning two children, X and Y. The children’s mother, Ms Traynor, is the applicant and the children’s father, Mr Casey, is the respondent in the proceedings. The children have been living separately since November 2018. The mother’s application was for Y and X to live with her and spend significant and substantial time with the father, thus resulting in the children living together for 14/14 nights each fortnight. The father and the Independent Children’s Lawyer’s application was for X to remain living with the father and Y to remain living with the mother with 5/14 nights for each child in the other parent’s household, thus resulting in the children living together for 10/14 nights. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings. The Court found that orders as sought by the father and the Independent Children’s Lawyer regarding the children’s living arrangements were on balance in their best interest. For all of those reasons, the Court made orders for the children to live in two households and spend time with each of their parents on a 5 night out of 14 basis, alternating between households such that the children would be living together for 10 nights out of each 14 nights. Holidays were to be equally shared between the households.

Orders