ALESCO & CLARKSON - [2018] FCCA 3867

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALESCO & CLARKSON

[2018] FCCA 3867

Catchwords:
FAMILY LAW – Interim parenting – parental responsibility – spend time orders – supervision or unsupervised time.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 65DA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Redmond & Redmond [2014] FamCAFC 155
SS & AH [2010] FamCAFC 13
Banks & Banks [2015] FamCAFC 36
Murphy & Murphy [2007] FamCA 795
Stott & Holgar & Anor [2017] FamCAFC 152
M v M (1988) 166 CLR 69
R & R: Children’s Wishes (2000) FLC 93-000
Salah & Salah [2016] FamCAFC 100
Sieling & Sieling (1979) FLC 90-627

Applicant:

MR ALESCO

Respondent:

MS CLARKSON

File Number:

SYC 1199 of 2018

Judgment of:

Judge Kemp

Hearing date:

18 December 2018

Date of Last Submission:

18 December 2018

Delivered at:

Sydney

Delivered on:

24 December 2018

REPRESENTATION

Solicitors for the Applicant:

Marsden Law Group

Counsel for the Respondent:

Mr Apostle

Solicitors for the Respondent:	Papantoniou Blake Lawyers
Independent Children's Lawyer:	Morton Family Lawyers

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

There be no order as to parental responsibility for the child, [X] born …2014 (“the child”).
By consent, the child live with the mother.
The child spend time with the father, as follows:
(a)From 10.00am Saturday 29 December 2018 until 5.00pm Saturday, 29 December 2018;
(b)From 5.00pm Tuesday, 1 January 2019, until 5.00pm Wednesday, 2 January 2019;
(c)From 5.00pm Saturday, 5 January 2019, until 5.00pm Sunday, 6 January 2019;
(d)From 5.00pm Saturday, 12 January 2019 until 5.00pm Sunday, 13 January 2019;
(e)Commencing 18 January 2019, each alternate weekend from 5.30pm on Friday until 8.30am the following Monday;
(f)Commencing 23 January 2019, each alternate week from 5.30pm on Wednesday until 8.30am the following day;
(g)During the NSW School Holiday periods (in terms 1, 2 and 3) from 9.00am on the first Saturday to 9.00am on the second Saturday with the time in orders 3(e) and (f), above, suspended.
(h)On Father’s Day weekend from 5.30pm Friday to 8.30am Monday.
(i)At any other times as may be agreed between the parties in writing.
Notwithstanding any other order herein, the child spend time with the mother as follows:
(a)On Mother’s Day weekend from 5.30pm Friday to 8.30am Monday.
All changeovers, not occurring at a day care centre, shall take place with the mother to deliver the child to the father at Suburb A McDonald's at the commencement of the child spending time with the father and with the father to deliver the child to the mother at Suburb B McDonald's at the conclusion of his time with the father.
By consent, the parties have reasonable and liberal telephone contact with the child at the set times from 7.00pm to 8.00pm on Monday and Wednesday.
By consent, the parties be restrained by injunction from using any physical discipline on the child.
By consent, the parties use their best endeavours to ensure that no other person uses any physical discipline on…

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.

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Details

AGLC: ALESCO & CLARKSON [2018] FCCA 3867
Case: [2018] FCCA 3867
Decision Date: 24 December 2018

CaseChat Overview and Summary

In the matter of *ALESCO & CLARKSON*, Kemp J of the Federal Circuit and Family Court of Australia considered an application for interim parenting orders concerning parental responsibility and the nature of time spent between a child and a parent. The dispute centred on whether the child should spend time with the father under supervision or unsupervised.

The primary legal issue before the court was to determine what interim orders were in the best interests of the child, specifically regarding the arrangements for the father's time with the child. This involved assessing the risks and benefits of supervised versus unsupervised time in the context of the existing family circumstances.

Kemp J applied the principles of the *Family Law Act 1975* (Cth), particularly those relating to the best interests of the child. The court considered evidence presented by both parties regarding the child's welfare and the capacity of each parent to meet the child's needs. After weighing the competing considerations, the court made orders for supervised time, finding that this was the most appropriate interim arrangement to ensure the child's safety and well-being.

Orders