AINSWORTH & YUEN (No.2) - [2020] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

AINSWORTH & YUEN (No.2)

[2020] FCCA 2214

Catchwords:
FAMILY LAW – Parenting – mother seeks sole parental responsibility – mother seeks to limit time – no case for such.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Federal Circuit Court Rules 2001

Cases cited:

M v M (1988) 166 CLR 69; FLC 91-979

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68

Applicant:

MR AINSWORTH

Respondent:

MS YUEN

File Number:

BRC 4054 of 2016

Judgment of:

Judge Coates

Hearing dates:

14, 15 and 16 July 2020

Date of Last Submission:

16 July 2020

Delivered at:

Brisbane

Delivered on:

16 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms S. Downes

Solicitors for the Applicant:

Aylward Game Solicitors

Counsel for the Respondent:

Mr. J. Cremin

Counsel for the Independent Children’s Lawyer:

Ms R. Lyons

Solicitors for the Independent Children’s Lawyer:

Jenny Boulton Solicitor

ORDERS

That the mother and father have equal shared parental responsibility for the care, welfare and development of the child X born in 2015 (“the child”).
That each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.
That the child live with the mother.
That the child spend time and communicate with the father at all times the parents agree in writing and failing agreement as follows:
(a)Commencing on 22 July 2020 and for a period of four weeks each Wednesday and Sunday from 9.00am to 4.00pm;
(b)Commencing on 19 August 2020 and for a period of eight weeks every second Wednesday and on alternate weekends from Saturday 9.00am to Sunday 4.00pm;
(c)Commencing on 23 October 2020 every second weekend from Friday 3.00pm to Sunday 4.00pm;
(d)Commencing on 4 December 2020 every second weekend from Friday 3.00pm to Monday 9.00am (or such times school finishes on a Friday and starts on a Monday once the child is attending school);
(e)Upon the child commencing school in 2022, every second weekend from after school on Friday or 3.00pm to before school on Monday or 9.00am and each Wednesday from after school or 3.00pm to before school on Thursday or 9.00am;
(f)From 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day, if Father’s Day falls on a weekend when the child is not already spending time with the father;
(g)On the child’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours, from 9:00am to 1:00pm in even-numbered years and from 1:00pm and 5:00pm in odd-numbered years, if the birthday falls on a non-school day;
(h)At Christmas:
(i)In even years, from 5:00pm on Christmas Eve until 12:00 noon Christmas day; and
(ii)In odd years, from 12:00 noon Christmas day until 5:00pm Boxing day;
(i)For one half of the specific Easter period;
(j)For one half of the…

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 AINSWORTH & YUEN (No.2)

Details

AGLC: AINSWORTH & YUEN (No.2) [2020] FCCA 2214
Case: [2020] FCCA 2214
Decision Date: 16 July 2020

CaseChat Overview and Summary

In the matter of *Ainsworth & Yuen (No.2)*, Judge Coates of the Family Court of Australia considered an application by the mother for sole parental responsibility and to limit the father's time with the child. The mother's application was dismissed.

The court was required to determine the most appropriate parenting orders for the child, X, born in 2015, considering the parents' respective roles and the child's best interests. Specifically, the court had to decide whether to grant the mother sole parental responsibility and whether to restrict the father's time with the child, as sought by the mother.

Judge Coates ordered that the mother and father have equal shared parental responsibility for the child, with the child to live with the mother. The father was granted significant time with the child, with detailed provisions for day-to-day decisions, overnight stays, holidays, and communication. The court also made orders concerning the father's alcohol consumption, requiring him to engage with a psychologist and undergo regular drug and alcohol testing, with supervised time to be implemented if certain conditions were not met. Further orders addressed communication between the parents, the child's travel, and the conduct of the parties towards each other. The mother's application for the child to travel overseas was dismissed.

Orders

Orders of the court

That the mother and father have equal shared parental responsibility for the care, welfare and development of the child X born in 2015 (“the child”).

That each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.

That the child live with the mother.

That the child spend time and communicate with the father at all times the parents agree in writing and failing agreement as follows:

(a) Commencing on 22 July 2020 and for a period of four weeks each Wednesday and Sunday from 9.00am to 4.00pm;

(b) Commencing on 19 August 2020 and for a period of eight weeks every second Wednesday and on alternate weekends from Saturday 9.00am to Sunday 4.00pm;

(d) Commencing on 4 December 2020 every second weekend from Friday 3.00pm to Monday 9.00am (or such times school finishes on a Friday and starts on a Monday once the child is attending school);

(e) Upon the child commencing school in 2022, every second weekend from after school on Friday or 3.00pm to before school on Monday or 9.00am and each Wednesday from after school or 3.00pm to before school on Thursday or 9.00am;

(f) From 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day, if Father’s Day falls on a weekend when the child is not already spending time with the father;

(g) On the child’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours, from 9:00am to 1:00pm in even-numbered years and from 1:00pm and 5:00pm in odd-numbered years, if the birthday falls on a non-school day;

(h) At Christmas:

(i) In even years, from 5:00pm on Christmas Eve until 12:00 noon Christmas day; and

(ii) In odd years, from 12:00 noon Christmas day until 5:00pm Boxing day;

(i) For one half of the specific Easter period;

(j) For one half of the Easter, June/July and September/October school holidays and in default of agreement the first week in odd numbered years and the second week in even numbered years;

(k) For one half of the Christmas school holidays commencing in December 2020 with such time to be week about for that holiday period only with the time commencing on the Saturday immediately following the cessation of school. As and from the Christmas holiday period commencing 2021 one half to alternate between the first and second half with the father to have the first half in odd numbered years and the second half in even years; and

(l) Telephone or video communication each Wednesday and Saturday between 6:00pm and 7:00pm until such time as the child commences spending time with the father each Wednesday pursuant to Order 4(e) above.

That if the child is with the father, the child shall spend time with the mother namely:

(a) For 3 days of the Chinese New Year’s Festival commencing Chinese New Year’s Eve, with the mother to inform the father of the dates each year;

(b) For the second half of the Chinese Mooncake Festival;

(c) If Mother’s Day falls on a weekend when the child is to be spending time with the father, from 5:00pm on the Saturday before Mother’s Day until 5:00pm Mother’s Day;

(d) On the child’s birthday, if the child is to be spending time with the father on those occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day;

(e) In odd years, from 5:00pm on Christmas Eve until 12:00 noon Christmas day; and

(f) In odd years, from 12:00 noon Christmas day until 5:00pm Boxing day.

That the mother is hereby restrained from enrolling the child in any additional extra-curricular activities without the consent in writing of the father.

That in the event the child participates in any extra-curricular activities on weekends, the father shall facilitate the child attending at least one extra-curricular activity on any weekend the child is in his care.

That the mother is hereby restrained from cancelling the time the child is to spend with the father for personal reasons, and only in the event of the child being hospitalised can time be cancelled. If a visit is being missed due to medical reasons the mother must provide the father with the details of the doctor attended or in case of hospitalisation where the child is admitted and the father is able to attend at the hospital to visit the child. If these conditions are not met and the child does not attend a visit, the mother will facilitate make-up time.

That the father is restrained from consuming alcohol during his time with the child and no less than 48 hours prior to the commencement of his time.

10.

That the father engage with a psychologist for the next two years to assist him in abstaining from excess alcohol consumption and that he attend at such times as recommended by the psychologist.

11.

That the father provide a report to the mother every three months from his psychologist.

12.

That the father complete CDT tests once every three weeks during the 12 month period from the date of these orders, and the results of such tests are to be provided to the mother as soon as they become available.

13.

That in the event that any of the CDT test results indicate probable excessive alcohol consumption or words to that effect, or the father fails to provide the results within 48 hours of receiving them to the mother, the father shall only spend supervised time with the child on alternate Sundays from 8:00am to 5:00pm until such time as the father has produced CDT results for a period of four months which do not indicate probable excessive alcohol consumption or words to that effect and thereafter all provisions of time as set out in these orders are to take effect.

14.

That in the event that the father’s time is to be supervised then it is to be supervised by either:

(a) Mr B (paternal grandfather); or

(b) Ms C (paternal grandmother).

15.

That changeover take place, when the father’s time is not supervised as follows, or as agreed between the parties:

(a) Changeover occurring before or after school occur at school with the father collecting and delivering the child to school; and

(b) Otherwise, changeovers occur at the BP Service Station at D Street, Suburb E in the State of Queensland.

16.

That at the designated times that changeover is to occur, each parent shall either deliver or collect the child in person, or arrange for the child to be delivered or collected by the child’s grandparent.

17.

That each parent encourage and facilitate reasonable telephone communication between the child and the other parent whilst the child is in their care as requested by the child.

18.

That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 2 (two) days of such change.

19.

That in the event of childhood illness or emergency the parent with whom the child or child are with, contact the other parent forthwith to inform them within three hours of the illness or emergency arising.

20.

That the mother provide any of the child’s hearing devices, including hearing aids and the Roger system, to the father when the child is spending time with the father, and the father will return any such device/s at the conclusion of the child’s time with him to the mother.

21.

That each of the parties, their servants and agents be hereby restrained from:

(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

(b) Recording the child and or other persons at changeover.

22.

That both parents be permitted to liaise directly with the child's care facilities, school and sporting bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child’s progress.

23.

That both parents are at liberty to attend at the child’s school and extracurricular activities for the purposes of any function or activity normally attended by parents.

24.

That each of the parents inform the other of any results of any medical testing for the child as soon as they become available.

25.

That each of the parents be at liberty to discuss and/or attend (not necessarily together) any of the child’s health issues with the treating health professionals and shall forthwith provide to the other parent the name, address and phone numbers of the treating professionals.

26.

That the parents establish and use a communication book and record, for the information of the other to be written in English, issues that are limited to the child’s care and that the communication book accompany the child between the parents’ homes.

27.

That the parents will encourage and foster the child’s relationship with the other parent and the other parent’s immediate family members.

28.

That X born in 2015 be and is hereby restrained from leaving the Commonwealth of Australia.

29.

That it is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of this Court or a Court with competent jurisdiction.

30.

That the mother’s application for the child to be permitted to travel overseas be dismissed.

31.

That the Application in a Case filed 25 March 2020 be dismissed.

32.

That the Independent Children’s Lawyer be discharged.

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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