Bardsley and Sefton - [2016] FCCA 1770

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARDSLEY & SEFTON

[2016] FCCA 1770

Catchwords:
FAMILY LAW – Parenting – whether shared care suitable for young child – households of each parent markedly differ – effect of the mother’s religious practices on the child’s psychological wellbeing and the impact of this on the child’s relationship with the mother – whether the father has negatively influenced the child – interstate travel – choice of school – whether equal shared responsibility is appropriate.

Legislation:

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

Cases cited:
Hodak & Hodak v Newman [1993] FamCA 833

Beard & McCarthy [2009] FamCA 737
Ridley & Whittle [2011] FMCAfam 985
In the Marriage of Rice & Asplund (1978) 6 Fam LR 570
King & Finneran [2001] FamCA 344

Marsden & Winch [2009] FamCAFC 152
DL & W [2012] FamCAFC 5
In the Marriage of T V and I J Freeman (1986) 11 Fam LR 293
Paisio v Paisio (1978) 26 ALR 132
Malave & Ratcliffe [2015] FCCA 201
Lennon & Lennon [2011]FamCA 571

Applicant:

MR BARDSLEY

Respondent:

MS SEFTON

File Number:

MLC 9483 of 2012

Judgment of:

Judge Williams

Hearing dates:

12 – 13 & 30 – 31 May 2016 & 1 June 2016

Date of Last Submission:

1 June 2016

Delivered at:

Melbourne

Delivered on:

15 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms McCreadie

Solicitors for the Applicant:

McGowan Family Law

Counsel for the Respondent:

Mr Hale

Solicitors for the Respondent:

Peter Lynch

ORDERS

All previous Parenting Orders regarding the Child X born on (omitted) 2012 be discharged.
The parents have equal shared parental responsibility for the Child X born (omitted) 2012 (“X”).
X live with the Father as follows:

During school terms

(a)In a two week cycle:
In Week 1:
(i)From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten Monday, or Tuesday in the event the Monday is a public holiday or non student day ; and
In week 2:
(ii)From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten or 9.00am Friday (whichever is the earliest).

(b)As otherwise agreed between the parents in writing.

During School Holidays

(c)X live with the Father for one half of all gazetted school holiday periods (term and long summer holidays) at times as agreed in writing and failing agreement as follows:
(i)For the first half of all school term holidays from the conclusion of school on the last day of the term until 7.00pm on the second Saturday of the holiday period;
(ii)For 2016/2017 summer school holidays, on a week about basis, subject to paragraph 4 hereof;
(iii)For 2017/2018 summer school holidays and each alternate odd year thereafter for the first half of the summer school holidays subject to paragraph 4 hereof;
(iv)For the 2018/2019 summer school holidays and each even alternate year thereafter for the second half of the summer school holidays, subject to paragraph 4 hereof.

Christmas / Easter

X live with…

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 Bardsley and Sefton

Details

AGLC: Bardsley and Sefton [2016] FCCA 1770
Case: [2016] FCCA 1770
Decision Date: 15 July 2016

CaseChat Overview and Summary

This matter concerned parenting orders for a child, X, born in 2012, with the proceedings brought before Judge Williams. The dispute revolved around the arrangements for X's living arrangements, time with each parent, and related matters, including communication, special days, and parental conduct.

The court was required to determine the specific terms of parenting orders, including the discharge of previous orders, the establishment of equal shared parental responsibility, and the detailed schedule for X to live with the Father and Mother. Further issues included provisions for interstate travel, the handling of special days such as birthdays and holidays, and the suspension of time in certain circumstances. The court also had to consider injunctions relating to religious practices and parental conduct, as well as communication protocols, notification of illness or injury, and the exchange of essential items.

Judge Williams ordered the discharge of all previous parenting orders concerning X. The court established equal shared parental responsibility and set out a detailed schedule for X to live with the Father, including specific arrangements for school terms, school holidays, Christmas, Easter, and Father's Day. X was to live with the Mother at all other times. The orders also included provisions for interstate travel with 14 days' notice, specific time with the Father on his birthday, and the suspension of time with the Father on Mother's Day and X's birthday. Injunctions were granted restraining the Mother from taking X to religious gatherings and the Father from denigrating the Mother. Further orders addressed communication, notification of illness, and the exchange of essential items, with specific directions for enrolment in primary school and the Father to complete a post-separation parenting course.

Orders

Orders of the court

All previous Parenting Orders regarding the Child X born on (omitted) 2012 be discharged.

The parents have equal shared parental responsibility for the Child X born (omitted) 2012 (“X”).

X live with the Father as follows:

During school terms

(a) In a two week cycle:

In Week 1:

(i) From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten Monday, or Tuesday in the event the Monday is a public holiday or non student day ; and

In week 2:

(ii) From the conclusion of school/kindergarten or 3.30pm (whichever is the earliest) Wednesday to the commencement of school/kindergarten or 9.00am Friday (whichever is the earliest).

(b) As otherwise agreed between the parents in writing.

During School Holidays

(c) X live with the Father for one half of all gazetted school holiday periods (term and long summer holidays) at times as agreed in writing and failing agreement as follows:

(i) For the first half of all school term holidays from the conclusion of school on the last day of the term until 7.00pm on the second Saturday of the holiday period;

(ii) For 2016/2017 summer school holidays, on a week about basis, subject to paragraph 4 hereof;

(iii) For 2017/2018 summer school holidays and each alternate odd year thereafter for the first half of the summer school holidays subject to paragraph 4 hereof;

(iv) For the 2018/2019 summer school holidays and each even alternate year thereafter for the second half of the summer school holidays, subject to paragraph 4 hereof.

Christmas / Easter

X live with the Father:

(a) from 12.00 noon Christmas Eve until 12.00 noon Christmas Day in 2016 and each alternate year thereafter;

(b) From 12.00 noon Christmas Day until 12.00 noon Boxing Day in 2017 and each alternate year thereafter.

X live with the Father from 10.00 am Good Friday until 10.00 am Easter Sunday each year.

Special Days

X live with the Father for Father's Day from 5.00 pm the Saturday evening immediately prior to Father's Day until the commencement of school/kindergarten Monday and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

Interstate Travel

Either parent shall be entitled to travel interstate with the child providing same does not impact upon the time the child is living with the other parent and providing that the parent wishing to travel with the child provides 14 days prior notice, contact and itinerary details to the other parent.

X spend time with the Father on his birthday as follows and that any provision of time under this Order that is inconsistent with this paragraph be suspended as follows;

(a) from 3.30 pm to 5.30 pm if a kindergarten/school day; or

(b) (b) if the child's birthday falls on a non kindergarten/school day when the Child would not otherwise be spending time with the Father from 3.30pm the day preceding his birthday to 7.00pm on his birthday

X spend time with the Father on the Father's Birthday

(a) from 3.30 pm to 7.30 pm if a kindergarten/school day or

(b) if the Father's birthday falls on a non-school day from 3.30pm the preceding day to 7.00 pm if the Child would not otherwise be spending time with the Father.

10.

X live with the Mother at all other times.

Suspension of Time

11.

If X is living with the father during the following times, such time shall be suspended as follows:

(i) Mother’s Day;

(ii) X's Birthdays;

(iii) Mother’s Birthday.

Changeover

12.

Where changeover does not occur at X’s kindergarten or school:

(a) the Father shall collect X from the Mother's residence or such other location as is agreed in writing at the commencement of the time the child is to live with him; and

(b) The Mother shall collect the child from the Father's residence or such other location as is agreed in writing at the commencement of the time the child is live with her.

13.

THAT in the event that X should be required to be collected from Childcare Centre/Kindergarten/School earlier than the usual designated finish time then the parent who is to spend time with the child that night is to collect X from Childcare Centre/Kindergarten/School.

Injunctions

14.

The Mother be and is hereby restrained by injunction from taking X to any (religion omitted) gatherings, meetings, (church omitted), (omitted), prayer services and/or from allowing the Child to study the religion, or permitting any other person to do so or facilitate same.

Telephone And Other Communication

15.

Either parent may contact the Child via telephone/internet/video at any reasonable time, and no more than one occasion in each three day period. ·

16.

The parents shall utilise a Communication Book in order to exchange information about X’s welfare, care and development. The Communication Book is to be exchanged between the parties at the commencement of X's time with each parent.

Injury Or Illness

17.

The parties keep each other informed as soon as practicable in respect of:

(a) (a) Any illness or significant injury suffered by X whilst in their care.

(b) (b) Any medical treatment obtained for X whilst in their care and the outcome thereof; and

(c) (c) In the event of the hospitalisation of X the parent who has the care of X shall notify the other of the hospitalisation as soon as practicable and both parents shall be entitled to attend the hospital.

Non-Denigration

18.

The Father, his servants and agents be and are hereby restrained by injunction from:

(a) Abusing, insulting belittling, rebuking or otherwise denigrating the Mother or the Mother's Family and/or

(b) Discussing these proceedings;

19.

The Mother, her servants and agents be and are hereby restrained by injunction from:

(a) Abusing, insulting belittling, rebuking or otherwise denigrating the Father or the Father's Family; and/or

(b) Discussing these proceedings;

Specific Issues

20.

Each party shall be responsible for providing all essential items for X whilst he is in his/her care and each party will ensure that any item belonging to X or provided by the other party is returned with X at the conclusion of their time.

21.

Each party is hereby authorised to obtain from X's Childcare Centre/Kindergarten/School all notices, letters, school reports, photographs and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

22.

Both parents may attend X's enrolment day, orientation day and first day of School and any other school function to which parents are ordinarily invited.

23.

Each party is hereby authorised to obtain from X's treating medical, dental and/or allied health practitioner/s any information regarding X reasonably requested.

24.

Each party provide to the other party a contact number, email address and address for X when he is in that party's care and notify the other party of any change to the contact details within twenty-four (24) hours of the change occurring.

25.

The father forthwith enrol in and complete a post separation parenting plan course and provide a certificate of completion to the mother forthwith after completion of the course.

26.

The parents forthwith do all acts and things to enrol X in (omitted) Primary School and ensure his attendance at that school.

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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