XANDER & DALY - [2015] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

XANDER & DALY

[2015] FCCA 1235

Catchwords:
FAMILY LAW – Parenting – where the parties reached agreement on all matters save for parental responsibility – where the mother seeks sole parental responsibility – where the father and the Independent Children’s Lawyer seek equal shared parental responsibility.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA, 65DA, 117

Cases cited:
Goode & Goode [2006] FamCA 1346
Newlands & Newlands [2007] FamCA 168

Pavli & Beffa [2013] FamCA 144
R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MS XANDER

Respondent:

MR DALY

File Number:

SYC 5074 of 2012

Judgment of:

Judge Kemp

Hearing dates:

26 & 27 March & 5 May 2015

Date of Last Submission:

5 May 2015

Delivered at:

Sydney

Delivered on:

14 May 2015

REPRESENTATION

The Applicant appeared self represented.

Solicitors for the Respondent:

Mr Long of Clinch Long Letherbarrow Pty Limited

Counsel for the Independent Children's Lawyer:

Mr Sperling

Solicitors for the Independent Children's Lawyer:

KD Holmes Solicitors

THE COURT ORDERS THAT:

In addition to the parenting orders made on 27 March 2015, the following orders are made in terms of orders 2 and 4, as follows:
2.The mother, Ms Xander (“the mother”) and the father, Mr Daly (“the father”) have equal shared parental responsibility for the children:
(i)[X] born [omitted] 2005 ([X])
(ii)[Y] born [omitted] 2007 ([Y]), and
(iii)[Z] born [omitted] 2012 ([Z])
(“the children”).
4.The mother and father shall when each of the children, [X], [Y] and [Z] are in Year 5 consult with each other in writing as to their proposals for high school for each such child AND in the event that there is no agreement by the end of Term 3 Year 5 about which high school any of the said children are to attend, the mother and father shall then do all such things to arrange to attend on the Parenting Orders Program (or if not available for this purpose a Family Relationships Centre) to attempt to resolve this issue prior to commencing any family law court proceedings.
The parties have leave to release a copy of this judgment to the convenor of the Parenting Orders Program or the Family Relationship Centre for use by any appropriate person employed in that program or Centre to assist the parties.
By consent, the father pay Legal Aid NSW, the Independent Children’s Lawyer’s costs in the sum of $4,100.00, within 3 months of the date of these orders.
There be no order as to costs as between the mother and the Independent Children’s Lawyer.
The appointment of the Independent Children’s Lawyer be discharged.
The matter is, otherwise, removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Xander & Daly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5074 of 2012

MS XANDER

Applicant

And

MR DALY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings…

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 XANDER & DALY

Details

AGLC: Xander and Daly [2015] FCCA 1235
Case: [2015] FCCA 1235
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the matter of Xander & Daly, Judge Kemp of the Federal Circuit Court of Australia made orders concerning the parenting of three children, [X], [Y], and [Z]. The dispute involved the parents, Ms Xander (the mother) and Mr Daly (the father), regarding the arrangements for their children.

The primary legal issue before the court was the determination of parental responsibility and the process for making significant decisions about the children's future, specifically their high school education. The court was required to establish a framework for joint decision-making and outline a dispute resolution pathway should the parents be unable to agree.

Judge Kemp ordered that the mother and father have equal shared parental responsibility for the children. Crucially, the court stipulated that for decisions regarding high school placement, the parents must consult in writing when each child reaches Year 5. If agreement is not reached by the end of Term 3 of Year 5, the parents are mandated to attend a Parenting Orders Program or a Family Relationships Centre to attempt resolution before initiating further court proceedings. The court also made orders regarding costs, with the father to pay the Independent Children's Lawyer's costs, and discharged the appointment of the Independent Children's Lawyer.

Orders

Orders of the court

In addition to the parenting orders made on 27 March 2015, the following orders are made in terms of orders 2 and 4, as follows:

2. The mother, Ms Xander (“the mother”) and the father, Mr Daly (“the father”) have equal shared parental responsibility for the children:

(i) [X] born [omitted] 2005 ([X])

(ii) [Y] born [omitted] 2007 ([Y]), and

(iii) [Z] born [omitted] 2012 ([Z])

(“the children”).

4. The mother and father shall when each of the children, [X], [Y] and [Z] are in Year 5 consult with each other in writing as to their proposals for high school for each such child AND in the event that there is no agreement by the end of Term 3 Year 5 about which high school any of the said children are to attend, the mother and father shall then do all such things to arrange to attend on the Parenting Orders Program (or if not available for this purpose a Family Relationships Centre) to attempt to resolve this issue prior to commencing any family law court proceedings.

The parties have leave to release a copy of this judgment to the convenor of the Parenting Orders Program or the Family Relationship Centre for use by any appropriate person employed in that program or Centre to assist the parties.

By consent, the father pay Legal Aid NSW, the Independent Children’s Lawyer’s costs in the sum of $4,100.00, within 3 months of the date of these orders.

There be no order as to costs as between the mother and the Independent Children’s Lawyer.

The appointment of the Independent Children’s Lawyer be discharged.

The matter is, otherwise, removed from the active pending cases list.

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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