Whitehill & Talaska (No 3) - [2024] FedCFamC2F 1890

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska (No 3) [2024] FedCFamC2F 1890

File number(s): MLC 3002 of 2024

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 December 2024

Catchwords: FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.

Legislation:
Australian Constitution s 92

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA

Cases cited:
AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756

D & SV [2003] FamCA 280

Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412

Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725

Sciacchitano & Zhukov [2024] FedCFamC1A 224

SPS & PLS (2008) FLC 93-363

U v U (2002) FLC 93-112; (2002) 29 Fam LR 74

Whitehill & Talaska [2024] FedCFamC2F 768

Division: Division 2 Family Law

Number of paragraphs: 109

Date of hearing: 20 December 2024 and 23 – 24 December 2024

Place: Melbourne

Counsel for the Applicant: Ms Swann

Solicitor for the Applicant: Saunders Family & Estate Lawyers

Counsel for the Respondent: Mr Willee

Solicitor for the Respondent: M C Lawyers & Associates
ORDERS

MLC 3002 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WHITEHILL

Applicant

AND:
MR TALASKA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Orders that require the child X born in 2021 to spend time with her father, Mr Talaska (‘the Father’), on each alternate Friday from 12.00pm until 5.00pm, being Orders 7 (c), 8(c), 9(c), 10(c), and Order 15 (that specifies the place of changeover) of the Orders dated 11 April 2023 (‘the 2023 Orders’) be and are discharged.
2.The 2023 Orders be varied as follows:
(a)That the part of the 2023 Orders in operation as at this day, paragraph 7, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)Each Wednesday from 8:00am to 5:30pm;
(ii)Each alternate weekend from 6:00pm Friday until 12:00pm Sunday.

(b)That the part of the 2023 Orders that was to come into operation on 23 July 2025, paragraph 8, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)From 23 July 2025 to the start of the academic year in 2027, X spend time with the Father as follows:
(A)Each Wednesday from 8:00am to 5:30pm;
(B)Each alternate weekend from 8:00am Friday until 3:30pm Sunday.

(c)That the part…

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 Whitehill & Talaska (No 3)

Details

AGLC: Whitehill & Talaska (No 3) [2024] FedCFamC2F 1890
Case: [2024] FedCFamC2F 1890
Decision Date: 24 December 2024

CaseChat Overview and Summary

In the case of Whitehill and Talaska, the applicant, Ms Whitehill, sought to vary existing parenting orders to facilitate her relocation to a nearby suburb for work and to be closer to family. The respondent, Mr Talaska, opposed the application. The matter was heard by Judge O'Shannessy in the Federal Circuit and Family Court of Australia. The central legal issue was whether the existing parenting orders should be varied to accommodate Ms Whitehill's relocation, considering the impact on the child's welfare and the father's objections. The court considered Ms Whitehill's arguments that the current orders significantly hampered her career and earning capacity, which in turn impacted her ability to provide for the child. The father opposed the changes, citing potential disruption to the child's routine and stability.

The court found in favour of Ms Whitehill, concluding that the benefits of her relocation, including career advancement and proximity to family, outweighed the potential disadvantages. The judge determined that the proposed changes to the parenting orders would be in the child's best interests. Consequently, the court varied the existing orders to reflect the new residence of Ms Whitehill, adjusting the time the child spends with Mr Talaska to accommodate the change. The recusal application by the father and the application for costs were reserved for further consideration. All other extant applications were dismissed. The new orders include specific provisions for the times and locations of changeovers, ensuring minimal disruption to the child's routine while allowing for the mother's relocation.

Orders

Orders of the court

MLC 3002 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS WHITEHILL

Applicant

AND:

MR TALASKA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Orders that require the child X born in 2021 to spend time with her father, Mr Talaska (‘the Father’), on each alternate Friday from 12.00pm until 5.00pm, being Orders 7 (c), 8(c), 9(c), 10(c), and Order 15 (that specifies the place of changeover) of the Orders dated 11 April 2023 (‘the 2023 Orders’) be and are discharged.

2. The 2023 Orders be varied as follows:

(a) That the part of the 2023 Orders in operation as at this day, paragraph 7, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:

(i) Each Wednesday from 8:00am to 5:30pm;

(ii) Each alternate weekend from 6:00pm Friday until 12:00pm Sunday.

(b) That the part of the 2023 Orders that was to come into operation on 23 July 2025, paragraph 8, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:

(i) From 23 July 2025 to the start of the academic year in 2027, X spend time with the Father as follows:

(A) Each Wednesday from 8:00am to 5:30pm;

(B) Each alternate weekend from 8:00am Friday until 3:30pm Sunday.

(c) That the part of the 2023 Orders to come into operation on 23 July 2026, paragraph 9, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:

(i) From the start of the 2027 academic school year until the start of Term 3 of the 2027 academic school year, X spend time with the Father as follows;

(A) Each Wednesday from 3:30pm to 6:30pm;

(B) Each alternate weekend from 3:30pm Friday to 5:00pm Sunday.

(d) That the part of the 2023 Orders to come into operation from the commencement of Term Two 2027, paragraph 10, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:

(i) From the commencement of Term 3, of the 2027 academic school year, and thereafter, X spend time with the father as follows:

(A) Each Wednesday from 3:30pm to 6:30pm;

(B) Each alternate weekend from 3:30pm or the conclusion of school on Friday until 9:00am or the commencement of school on Monday, and if the Monday is a non-school day, the following Tuesday PROVIDED that X spend Sunday night (or Monday night as the case maybe) at her paternal grandmother's home in Suburb D, or place of similar travel for X, so that she is not subjected to long travel times in being delivered to school AND if such accommodation is not available then the Father provide no less than 72 hours notice to the Mother and return X to the Mother at 5.00pm Sunday.

3. Unless otherwise agreed between the parties in writing, all changeovers occur at school (when X is attending school) and otherwise at the M Service Station at Suburb N (on O Street) OR when the Father provides the Mother with at least 24 hours notice in writing via the parenting application, then at the McDonald restaurant in Suburb D.

4. Reasons for the Father’s applications for disqualification of the Judge be and are reserved.

5. The decision and reasons in regard to the Father’s application for costs be and are reserved.

6. All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number(s):	MLC 3002 of 2024
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	24 December 2024
Catchwords:	FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed.
Legislation:	Australian Constitution s 92 Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA
Cases cited:	AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756 D & SV [2003] FamCA 280 Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412 Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725 Sciacchitano & Zhukov [2024] FedCFamC1A 224 SPS & PLS (2008) FLC 93-363 U v U (2002) FLC 93-112; (2002) 29 Fam LR 74 Whitehill & Talaska [2024] FedCFamC2F 768
Division:	Division 2 Family Law
Number of paragraphs:	109
Date of hearing:	20 December 2024 and 23 – 24 December 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Swann
Solicitor for the Applicant:	Saunders Family & Estate Lawyers
Counsel for the Respondent:	Mr Willee
Solicitor for the Respondent:	M C Lawyers & Associates

MLC 3002 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WHITEHILL Applicant
AND:	MR TALASKA Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 DECEMBER 2024