BAKER & WARWICK - [2019] FamCA 199

FAMILY COURT OF AUSTRALIA

BAKER & WARWICK [2019] FamCA 199

FAMILY LAW – CHILDREN – Interim – Parental Responsibility – Where the presumption of equal shared parental responsibility applies and neither party submitted to the contrary – Concluded the parties will have equal shared parental responsibility for the child.

FAMILY LAW – CHILDREN – Interim parenting orders – With whom a child lives and spends time – Where s 65DAA of the Family Law Act 1975 (Cth) is engaged – Best interests – Where the child has meaningful relationships with both parents – Where the child does not need protection from subjection or exposure to abuse, family violence or neglect – Where the mother relocated with the child without the father’s consent – Where there is no practical impediment to the child either living or spending protracted periods of time with the father – Concluded an equal time arrangement would be in the child’s best interests and would be reasonably practicable to implement – Concluded a mandatory injunction forcing the mother’s relocation not necessary – Concluded there is insufficient evidence to make injunctions to restrain the mother from changing the child’s current medical providers – Ordered the parties do all things necessary for the child to attend her current speech therapist for a period recommended by that speech therapist.

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61DA, 64B, 65AA, 65DAA, 65DAC

Family Law Rules 2004 (Cth) r. 5.10

AMS & AIF (1999) 199 CLR 160; [1999] HCA 26
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

APPLICANT: Mr Baker

RESPONDENT: Ms Warwick

FILE NUMBER: NCC 626 of 2018

DATE DELIVERED: 15 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15 March 2019
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Attwaters

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Browns The Family Lawyers
PENDING FURTHER ORDER, IT IS ORDERED
1.All former parenting orders in relation to the child, born 2014, are discharged.
2.The mother and father shall have equal shared parental responsibility for the child

3.Each of the parties shall take all reasonable steps to ensure the child lives with:

a.The father until 5:00 pm on Sunday, 17 March 2019;
b.The mother from 5:00 pm on Sunday, 17 March 2019, until 5:00 pm on Sunday, 24 March 2019, and every alternate week thereafter; and

c.The father from 5:00 pm on Sunday, 24 March 2019, until 5:00 pm on Sunday, 31 March 2019, and every alternate week thereafter.

4.For the purposes of the child’s exchange between the parties, the parties shall cause the child’s delivery to and collection from the Suburb B Public Library.
5.The parties shall do all acts and things to cause the child to attend speech therapy with Ms C of D Medical Centre, for such period as recommended by Ms C.

6.Each party is restrained from denigrating the other in…

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 BAKER & WARWICK

Details

AGLC: BAKER & WARWICK [2019] FamCA 199
Case: [2019] FamCA 199
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of *Baker & Warwick*, heard before Austin J, the dispute concerned interim parenting orders for a child. The parties, the mother and the father, were seeking to establish arrangements for the child's residence and time spent with each parent.

The court was required to determine whether the presumption of equal shared parental responsibility applied, and if so, what interim orders were in the child's best interests regarding where the child lives and spends time. This involved considering the application of section 65DAA of the *Family Law Act 1975* (Cth), the child's meaningful relationships with both parents, and whether the child required protection from abuse, family violence, or neglect. The court also had to assess the impact of the mother's relocation with the child without the father's consent and the practicability of various arrangements.

Austin J concluded that the presumption of equal shared parental responsibility applied, as neither party submitted to the contrary. The court found that an equal time arrangement would be in the child's best interests and was reasonably practicable to implement, noting the absence of any practical impediment to the child living or spending significant periods with the father. Consequently, the court determined that a mandatory injunction compelling the mother's relocation was not necessary. Furthermore, there was insufficient evidence to grant injunctions restraining the mother from changing the child's current medical providers.

The court ordered that the parties were to do all things necessary for the child to attend her current speech therapist for a period as recommended by that therapist.

Orders