YENGER & WILBERT - [2020] FCCA 3486

FEDERAL CIRCUIT COURT OF AUSTRALIA

YENGER & WILBERT

[2020] FCCA 3486

Catchwords:
FAMILY LAW – Interim parenting – where each party seeks exclusive occupancy of the former matrimonial home – significant parental conflict – assessment of risk – mother to have sole occupancy – children to live with mother and spend time with father.

Legislation:

Family Law Act 1975 (Cth), s.68B

Cases cited:

VCM & KRM [2005] FMCAfam 108

Applicant:

MS YENGER

Respondent:

MR WILBERT

File Number:

PAC 4459 of 2020

Judgment of:

Judge Obradovic

Hearing date:

28 October 2020

Date of Last Submission:

28 October 2020

Delivered at:

Parramatta

Delivered on:

23 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Todd

Solicitors for the Applicant:

Khalil Family Lawyers

Counsel for the Respondent:

Ms Bridger

Solicitors for the Respondent:

Bray Jackson & Co

Appearing for the Independent Children’s Lawyer:

Ms Rutkowska

Solicitors for the Independent Children’s Lawyer:

Ark Lawyers

PENDING FURTHER OTHER

The children X born in 2007 and Y born in 2012 shall live with the mother.
The child Z born in 2003 shall live with and spend time with each parent in accordance with her wishes.
X and Y shall spend time with the father at all times as agreed between the parents in writing, and failing agreement as follows:
(a)Each alternate week commencing from after school on Friday until Monday morning whereby the father will collect X and Y from school and drop them off at school, or the mother’s home if not on a school day.
(b)During the school holiday periods at the conclusion of Terms 1, 2 and 3:
(i)In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and
(ii)In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm on the last Saturday prior to the commencement of school.
(c)During the school holiday period at the conclusion of Term 4:
(i)In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and
(ii)In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm of the Saturday prior to the commencement of the new school year.
(d)During Christmas as follows:
(i)In even numbered years, from 2pm on 24 December until 2pm on 25 December.
(ii)In odd numbered years, from 2pm on 25 December until 2pm on 26 December.
The father shall, within 28 days of the date of these Orders, vacate the property situated at B Street, Suburb C and thereafter the father is hereby restrained by injunction from residing in the property situated at B Street, Suburb C.
The matter is listed for directions at 2:15pm on 29 March 2021.
The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions…

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 YENGER & WILBERT

Details

AGLC: YENGER & WILBERT [2020] FCCA 3486
Case: [2020] FCCA 3486
Decision Date: 23 December 2020

CaseChat Overview and Summary

In the matter of Yenger & Wilbert, heard by Judge Obradovic, the dispute concerned interim parenting arrangements and exclusive occupancy of the former matrimonial home. Each party sought sole occupancy of the residence, indicating significant parental conflict.

The court was required to determine the best interests of the children, specifically addressing which parent should have sole occupancy of the former matrimonial home and the interim living arrangements and time spent between the children and each parent. The assessment of risk was a central consideration in the court's determination.

The court ordered that the mother have sole occupancy of the former matrimonial home, with the father to vacate within 28 days and be restrained from residing there thereafter. The children X and Y were ordered to live with the mother, with specific provisions for their time spent with the father, including alternate weeks and staggered school holiday arrangements. The older child, Z, was to live with and spend time with each parent in accordance with her wishes. The matter was listed for further directions.

Orders

Orders of the court

PENDING FURTHER OTHER

1. The children X born in 2007 and Y born in 2012 shall live with the mother.

2. The child Z born in 2003 shall live with and spend time with each parent in accordance with her wishes.

3. X and Y shall spend time with the father at all times as agreed between the parents in writing, and failing agreement as follows:

3. (a) Each alternate week commencing from after school on Friday until Monday morning whereby the father will collect X and Y from school and drop them off at school, or the mother’s home if not on a school day.

3. (b) During the school holiday periods at the conclusion of Terms 1, 2 and 3:

3. (i) In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and

3. (ii) In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm on the last Saturday prior to the commencement of school.

3. (c) During the school holiday period at the conclusion of Term 4:

3. (i) In even numbered years, the first half of the school holidays commencing from the conclusion of school on Friday until 6pm on the middle Saturday; and

3. (ii) In odd numbered years, the second half of the school holidays commencing from 6pm on the middle Saturday of the school holidays until 6pm of the Saturday prior to the commencement of the new school year.

3. (d) During Christmas as follows:

3. (i) In even numbered years, from 2pm on 24 December until 2pm on 25 December.

3. (ii) In odd numbered years, from 2pm on 25 December until 2pm on 26 December.

4. The father shall, within 28 days of the date of these Orders, vacate the property situated at B Street, Suburb C and thereafter the father is hereby restrained by injunction from residing in the property situated at B Street, Suburb C.

5. The matter is listed for directions at 2:15pm on 29 March 2021.

6. The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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

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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