Abrams and Demars - [2008] FMCAfam 797

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABRAMS & DEMARS

[2008] FMCAfam 797

FAMILY LAW – Child aged 3 years and 9 months – interim parenting arrangements – allegations of family violence – whether presumption of equal shared parental responsibility applies – whether presumption rebutted by allegations of family violence – whether reasonable grounds for court to believe family violence has occurred – whether appropriate to apply presumption at interim stage – best interests – consideration of entitlement of child to have meaningful relationship with both parents – equal time – substantial and significant time.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 92-286
In the Marriage of Patsalou (1994) 18 Fam LR 426
Cowling v Cowling (1998) FLC 92-801
JG & BG (1994) 18 Fam LR 255

Applicant:

MR ABRAMS

Respondent:

MS DEMARS

File Number:

ADC 2715 of 2008

Judgment of:

Brown FM

Hearing date:

28 July 2008

Date of Last Submission:

28 July 2008

Delivered at:

Adelaide

Delivered on:

31 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

Boltons Lawyers

Counsel for the Respondent:

Mrs West

Solicitors for the Respondent:

Donlan Lawyers

UNTIL FURTHER OR OTHER ORDERS

The parties have equal shared parental responsibility for the child of the relationship [X] born in 2004 (hereinafter referred to as “the child”).
The child live with each of his parents on an equal time basis moving between his parents respective homes at 5:00pm on Friday of each week provided that the child spends from 5:00pm on Tuesday until 9:00am the following morning with the parent other than whom he is living with during the week concerned.
The parties exchange the child between them for the purpose of implementing these orders at a location to be agreed between them and failing agreement to be at the paternal grandparents’ home.
The parties be restrained and an injunction granted retraining either of them from consuming alcoholic beverages during any period of time the child is in his or her respective care.
In the event that Father’s Day falls on a weekend when the child would be otherwise in the care of the mother, the father shall spend time with the child on Father’s Day between 10:00am and 5:00pm.
The party not providing a residence for the child on the occasion of his birthday shall be entitled to spend time with the child on his birthday for a period of four (4) hours, the hours to be agreed between the parties and failing agreement to be between 3:30pm and 7:30pm.
In order to give effect to these orders the mother will deliver the child to the father at 5:00pm on 1 August 2008 and the week about arrangement as ordered by order (2) hereof shall continue thereafter unless otherwise agreed by the parties or varied by further order of the court.
The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to…

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 Abrams and Demars

Details

AGLC: Abrams and Demars [2008] FMCAfam 797
Case: [2008] FMCAfam 797
Decision Date: 31 July 2008

CaseChat Overview and Summary

The case of Abrams and Demars before the Federal Magistrates Court involved an interim hearing regarding the parenting arrangements for a child aged 3 years and 9 months. The father sought to establish an equal shared parental responsibility arrangement, while the mother argued for limited and supervised contact due to allegations of family violence and concerns about the father's fitness to parent. The court had to decide whether to apply the presumption of equal shared parental responsibility under section 61DA of the Family Law Act and whether it was appropriate to do so at the interim stage. The court also had to consider the best interests of the child, taking into account various factors under section 60CC of the Act.

The court found that while the allegations of family violence were serious, there was insufficient evidence to conclude that the father had engaged in family violence against the mother. However, the court noted the potential risks posed by the father's behaviour if the allegations were true. Balancing the child's need for a meaningful relationship with both parents against the potential risks, the court decided to apply the presumption of equal shared parental responsibility. The court also ordered an equal time arrangement for the child, pending a family assessment report, to be completed within two to three months. The court emphasized the importance of both parents maintaining a close and loving relationship with the child and highlighted the need for the parties to cooperate in implementing the arrangements. The court adjourned the matter to allow time for the family assessment and to consider any necessary adjustments to the interim orders.

Orders