Barber and Salmon - [2009] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARBER & SALMON

[2009] FMCAfam 272

FAMILY LAW – Children – parenting orders – weight to be attributed to “status quo” – where father leads lifestyle that involves drinking alcohol to excess and the use of cannabis – where mother can provide a more stable, stimulating and balanced environment – comparison of parents’ maturity and lifestyle.

Family Law Act 1975 (Cth)

A v A: Relocation Approach (2000) 26 FamLR 382
Burton (1978) 4 FamLR 783
Carpenter and Lunn (2008) FamCAFC 128
Chappell (2008) FamCAFC 143
Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
Mazorski & Albright (2008) 37 FamLR 518
McLeay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose (2008) FLC 93-375
Pender & Haywood [2007] FamCA 152656
Re: G: Children’s Schooling (2000) 26 FamLR 143
Roth (2008) FMCAfam 781

Applicant:

MS BARBER

Respondent:

MR SALMON

File Number:

DGC 4238 of 2007

Judgment of:

Walters FM

Hearing date:

12 September 2008

Date of Last Submission:

26 September 2008

Delivered at:

Melbourne

Delivered on:

31 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Gray Friend And Long, Warragul

Counsel for the Respondent:

Mr Brewer

Solicitors for the Respondent:

Quintessential Lawyers, Dandenong

Counsel for the Independent Children’s Lawyer:

Ms Boymal

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid, Melbourne

ORDERS

IT IS ORDERED THAT:

All previous parenting orders be discharged.
The father and the mother have equal shared parental responsibility for the child [X] born in 2001 (“the child”).
The child live with the mother.
The child spend time with and communicate with the father as follows:
(a)from 5.30 pm Friday until 5.30 pm Sunday for the first three weekends of a four week cycle commencing 24^th April 2009 PROVIDED THAT if a public holiday occurs on the day before or after such a weekend the time will commence at 5.30 pm Thursday or conclude at 5.30 pm Monday as is applicable;
(b)for half of all school term holidays at times to be agreed between the parties but failing agreement the first half, commencing the final day of the school term;
(c)for half of the long summer vacation at times to be agreed between the parties but failing agreement as follows:
(i)for the second 12 days and half of the remaining holidays after the second 24 days in the year 2009/2010 and each alternate year thereafter; and
(ii)for the first 12 days and half of the remaining holidays after the first 24 days in the year 2010/2011 and each alternate year thereafter.
(d)from 5.30 pm Easter Thursday to 5.30 pm Easter Monday in the year 2009 and each alternate year thereafter;
(e)from 5.30 pm the Friday prior to Father’s Day until 5.30 pm Father’s Day;
(f)at such other times as is agreed between the parties.
Should the child be spending time with the father in accordance with order 4(a) or 4(b) herein such time be suspended as follows:

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 Barber and Salmon

Details

AGLC: Barber and Salmon [2009] FMCAfam 272
Case: [2009] FMCAfam 272
Decision Date: 31 March 2009

CaseChat Overview and Summary

The case of Barber and Salmon involved a dispute between the father and the mother regarding parenting arrangements for their child, [X]. The matter was heard and decided in the Family Court of Australia. The parents were required to determine various aspects of their child's upbringing, including the allocation of parental responsibility, living arrangements, and visitation schedules. The court's role was to make decisions that would be in the best interest of the child, balancing the rights and needs of both parents.

The primary legal issues before the court included determining the appropriate allocation of parental responsibility between the parties, establishing the child's primary residence, and setting out a detailed visitation schedule that would accommodate the needs of the child and both parents. The court also needed to consider the parties' respective abilities to provide for the child's welfare, their willingness to cooperate, and any other relevant factors impacting the child's best interests. In reaching its decision, the court applied the principles of the Family Law Act 1975, focusing on the paramount consideration of the child's welfare.

The Family Court considered the evidence and submissions from both parties, ultimately deciding that the child would have equal shared parental responsibility with both parents. The child would primarily reside with the mother, but the father would have extensive visitation rights, including specified periods during weekends, school holidays, and special occasions. The court also mandated that the father collect the child from a designated location and return them to another specified location. Furthermore, the father was authorised to receive certain school-related communications and participate in school activities. The court restrained the father from excessive alcohol consumption or drug use when the child was in his care, and both parents were required to notify each other of any significant changes affecting the child. The court's decisions were designed to foster a stable and supportive environment for the child, promoting healthy relationships with both parents.

The court issued comprehensive orders to ensure clarity and enforceability, detailing the specific obligations and consequences of non-compliance. The orders took effect from 3 April 2009, and the child was to be enrolled in [R] School starting from Term 2. The court also noted that the child would spend the first half of the Term 1 holidays with the father. The particulars of the obligations and consequences of the orders were set out in an attachment, which was included in the court's final decision.

Orders

Orders of the court

IT IS ORDERED THAT:

All previous parenting orders be discharged.

The father and the mother have equal shared parental responsibility for the child [X] born in 2001 (“the child”).

The child live with the mother.

The child spend time with and communicate with the father as follows:

(a) from 5.30 pm Friday until 5.30 pm Sunday for the first three weekends of a four week cycle commencing 24th April 2009 PROVIDED THAT if a public holiday occurs on the day before or after such a weekend the time will commence at 5.30 pm Thursday or conclude at 5.30 pm Monday as is applicable;

(b) for half of all school term holidays at times to be agreed between the parties but failing agreement the first half, commencing the final day of the school term;

(i) for the second 12 days and half of the remaining holidays after the second 24 days in the year 2009/2010 and each alternate year thereafter; and

(ii) for the first 12 days and half of the remaining holidays after the first 24 days in the year 2010/2011 and each alternate year thereafter.

(d) from 5.30 pm Easter Thursday to 5.30 pm Easter Monday in the year 2009 and each alternate year thereafter;

(e) from 5.30 pm the Friday prior to Father’s Day until 5.30 pm Father’s Day;

(f) at such other times as is agreed between the parties.

Should the child be spending time with the father in accordance with order 4(a) or 4(b) herein such time be suspended as follows:

(a) from 5.30 pm Easter Thursday until 5.30 pm Easter Monday in the year 2010 and each alternate year thereafter.

(b) from 5.30 pm the Friday prior to Mother’s Day until 5.30 pm Mother’s Day.

For the purpose of changeover the father collect the child at the commencement of time spent from the [omitted] McDonald’s restaurant and the mother collect the child at the conclusion of time spent from the father’s residence in [W].

The father be authorised to receive from the child’s school at his own expense copies of all material usually provided to a parent, including but not limited to newsletters, notices of events parents are invited to attend, reports and photo order forms AND the father be authorised to communicate with the school, attend parent teacher interviews and other activities which parents usually participate in or attend.

With a denial of the necessity for same the father be and is hereby restrained from drinking alcohol to excess or using illicit substances and/or non-prescription drugs when the child is in his care, and from knowingly bringing the child into contact with anyone so affected.

Each parent notify the other as soon as practicable of any medical or dental emergency or serious accident or illness suffered by the child when in their care.

10.

Each parent notify the other 28 days prior to any change of address or telephone numbers.

AND THE COURT NOTES THAT:

11.

[X] will be enrolled in [R] School to commence Term 2 (April) 2009.

12.

It is agreed that [X] will spend the first half of the Term 1 holidays 2009 with her father.

13.

It is agreed that these orders will take effect from Friday 3 April 2009.

14.

Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

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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