FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARNSLEY & GAYNOR (No.2) | [2019] FCCA 3811 |
| Catchwords: FAMILY LAW – PARENTING – One child aged four – where the parents consciously entered into the child’s conception without the intention of being an intact family unit – where the child has lived with the mother since birth – competing proposals – whether a meaningful relationship is best achieved through an immediate or fairly immediate move to equal time or whether it is achieved by way of a more gradual build-up of arrangements – best interests of child – practical difficulties – the child’s history of experience of life to date – where the parents are cooperative – orders made for the child to live with the mother and spend time with the father – order made for the child’s time with the father to increase yearly up to five nights a fortnight and half of school holidays. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZN, 60CA, 60B, 60CC 65DAA, 61DA |
| Cases cited: Harris & Caladine (1991) 172 CLR 84 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR BARNSLEY |
| Respondent: | MS GAYNOR |
| File Number: | PAC 2546 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 28 and 29 November 2019 |
| Date of Last Submission: | 29 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 29 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
The parents of X born 2015, namely his father Mr Barnsley and his Mother Ms Gaynor shall have equal shared parental responsibility for making major issues decisions for him.
Each of Mr Barnsley and Ms Gaynor shall have parental responsibility for making decisions concerning X which are not major long term issues when X is spending time with them or in their care.
X shall live with his mother, Ms Gaynor.
Until 2 July 2020, X shall spend time with his father Mr Barnsley:
(a)Each alternate weekend from 8:30am Saturday until 5pm the following Tuesday, first such period to commence Saturday 7 December 2019.
(b)Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence 2 December 2019.
(c)From 5pm Christmas Eve until 5pm Christmas Day 2019 (and with the intention that X will be in his father’s care from 8:30am Saturday 21 December until 5pm Christmas day)
(d)During school holiday periods and notwithstanding that X will not be attending formal school, the weekend periods that X will spend with his father (Order 4(a)) shall be extended so as to commence 5pm Friday and conclude 5pm Tuesday.
(e)Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
From 3 July 2020 and until X commences school 2021:
(a)Each alternate weekend from 5pm Friday until 5pm the following Tuesday, first such period to commence in accordance with the pattern of weekend time established by Order 4(a).
(b)Each intervening week from 8:30am…
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- Case
- [2019] FCCA 3811
- Decision Date
CaseChat Overview and Summary
The court was required to determine how a meaningful relationship between X and his father could best be achieved, considering whether this involved an immediate or gradual increase in X's time with his father. The court also had to consider the best interests of the child, taking into account practical difficulties and X's history of experience.
Judge Harman found that the parents were cooperative and that the child's best interests would be served by a gradual increase in time spent with his father. The court applied the principles of the best interests of the child under the *Family Law Act 1975* (Cth). The court made orders for X to live with his mother and spend time with his father, with X's time with his father progressively increasing annually until it reached five nights per fortnight, in addition to half of the school holidays.
Orders
Orders of the court
1.
The parents of X born 2015, namely his father Mr Barnsley and his Mother Ms Gaynor shall have equal shared parental responsibility for making major issues decisions for him.
2.
Each of Mr Barnsley and Ms Gaynor shall have parental responsibility for making decisions concerning X which are not major long term issues when X is spending time with them or in their care.
3.
X shall live with his mother, Ms Gaynor.
4.
Until 2 July 2020, X shall spend time with his father Mr Barnsley:
(a) Each alternate weekend from 8:30am Saturday until 5pm the following Tuesday, first such period to commence Saturday 7 December 2019.
(b) Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence 2 December 2019.
(c) From 5pm Christmas Eve until 5pm Christmas Day 2019 (and with the intention that X will be in his father’s care from 8:30am Saturday 21 December until 5pm Christmas day)
(d) During school holiday periods and notwithstanding that X will not be attending formal school, the weekend periods that X will spend with his father (Order 4(a)) shall be extended so as to commence 5pm Friday and conclude 5pm Tuesday.
(e) Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
5.
From 3 July 2020 and until X commences school 2021:
(a) Each alternate weekend from 5pm Friday until 5pm the following Tuesday, first such period to commence in accordance with the pattern of weekend time established by Order 4(a).
(b) Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence in accordance with the pattern of weekend time established by Order 4(b).
(c) From 5pm Christmas Day until 5pm 27 December 2020 and in the event that X is scheduled to be in his father’s care for a weekend period in accordance with Order 5(a), then that period shall take precedence such that X would be in his father’s care from 5pm Friday (Christmas Day) until 5pm the following Tuesday.
(d) During school holiday periods and notwithstanding that X will not be attending formal school, the weekend periods that X shall spend with his father (Order 5(a)) shall be extended so as to commence 5pm Friday and conclude 5pm Wednesday.
(e) Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
6.
Thereafter and from the commencement of term 1, 2021:
(a) Each alternate weekend from 5pm Friday until 5pm the following Tuesday, first such period to commence the first weekend of each school term.
(b) Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence on the second Monday of each school term.
(c) For one half of each short school holiday period as agreed between X’s parents or failing agreement from 10am on the first Saturday until 5pm on the middle day of the holidays.
(d) One half of the Christmas/New Year school holiday in each year as agreed between X’s parents or failing agreement from 10am on the first Saturday until 5pm on the middle day of the holidays.
(e) Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
7.
Notwithstanding the above orders, Mr Barnsley shall spend additional time with X, if X is not already in or to be in Mr Barnsley’s care, for the following special occasions:
(a) The Father’s Day weekend from 5pm Saturday until 5pm Sunday.
(b) X’s and the father’s birthday, from after school until 7pm if a school day or 2pm until 7pm if a non-school day.
(c) From 8:30am Christmas Eve until 5pm Christmas Day in 2021 and each alternate year thereafter and from 5pm Christmas Day until 5pm 27 December in 2022 and each alternative year thereafter.
8.
Notwithstanding the above orders Ms Gaynor shall spend time with X, if X is not already in Ms Gaynor’s care on the following special occasions:
(a) The Mother’s Day weekend from 5pm Saturday until 5pm Sunday.
(b) X’s and the mother’s birthday, from the conclusion of school until 7pm if a school day or 2pm until 7pm if a non-school day.
(c) From 8:30am Christmas Eve until 5pm Christmas Day in 2020 and each alternate year thereafter and from 5pm Christmas Day until 5pm 27 December in 2021 and each alternative year thereafter.
(d) From after school until before school the following day if a school day or from 8:30am until 8:30pm the following day if a non-school day on each of Chinese/New Years’ Eve, Chinese/New Years’ Day, Chinese Moon Festival and to facilitate such periods Mr Barnsley’s time shall, for the duration of each period, be suspended.
9.
That, notwithstanding these Orders, the parties may agree in writing to vary the times at which X lives with and spends time with each of them.
10.
That the Father shall collect X from the Mother's usual place of residence or X's school (whichever applies) at the commencement of X's time with the Father and the Mother shall collect the X from the Father’s usual place of residence or X's school (whichever applies) at the conclusion of X's time with the Father.
11.
That in the event that X should at any time whilst in the care of either parent, express a wish or desire to telephone the other parent then each shall allow X to do so and shall provide such assistance to X as he may require.
12.
That both parties will do all acts and things and sign all documents necessary to ensure X's enrolment in the first of the below schools at which X is accepted for enrolment, and in the following priority:
(a) School B; and
(b) School A.
13.
That the parents shall not enrol or register X in any extracurricular activity in which he is likely to be involved during periods when X would be spending time with the other parent unless other parent also consents to that enrolment or registration.
14.
That each parent is permitted to attend any sporting or cultural activity in which X is participating in at times when X would not otherwise be spending time with that parent.
15.
That the Father sign all documents, give all consents and do all necessary acts and things as requested by the Mother to enable X to be issued with an Australian passport.
16.
That either parent be permitted to take X on holidays out of Australia, during the time that X lives with or spends time with each of them pursuant to these Orders, unless a longer period of time is otherwise agreed between the parents in writing, provided that he or she gives to the other parent written details of the holiday including:
(a) Dates of departure from and return to Australia;
(b) Copy of itinerary provided by travel agent or airline;
(c) Copy of return airline ticket/s;
(d) Places it is intended to visit whilst away from Australia; and
(e) Details of how X can be contacted whilst away from Australia including contact telephone number and address (if known).
17.
That, during each holiday, the parent traveling with X facilitate X telephoning the other parent on not less than 3 occasions each week.
18.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving X which involves medical treatment or hospitalisation whilst X is in their respective care
19.
That each party inform the other, in writing, of any change to his or her residential address not less than two days prior to such change occurring and of any change to his or her contact telephone within 24 hours of such change occurring.
20.
That neither party denigrate the other party or members of the other party’s family to X or in the presence or hearing of the X or permit any other person to do so.
21.
That the parents shall use the following process for resolving disputes about the terms or operation of these orders:
(a) If either parent believes that there is a disagreement about the terms or operation of these orders then he or she shall, in the first instance, advise the other parent by phone/in writing/by email of such belief together with as much information as is possible to enable that parent to consider whether there is in fact a disagreement.
(b) The parents shall then communicate in relation to options for resolving the dispute, in writing/by email/ by meeting at a neutral venue to facilitate such communication.
(c) In the event that this process does not lead to the parents making a joint decision in respect of the particular issue, then they shall each do all things necessary:
(i) To engage and consult with Relationships Australia or such other professional as agreed between the parties in writing to be the professional for the purposes of this order (“the Professional”); and
(ii) Such consultation to be for the purposes of mediating and trying to reach a resolution between the parties of the issue then in dispute; and
(iii) Such process to involve the child to the extent and in the manner recommended by the Professional (which may involve recommendation the child not be involved); and
(iv) Such process may incorporate assistance of other child or dispute resolution experts as recommended by the Professional and/or agreed by the parties.
22.
Both parties shall do all things and sign all documents necessary to authorise or enable the Principal of any school the child may attend from time to time, to provide to the other party at the requesting parties expense, copies of all school reports, photographs, notifications of school events to which parents may be ordinarily invited.
23.
Each party shall be permitted to contact the child’s school/child-care for the purposes of discussing the child’s progress and these orders shall be sufficient authority for him to do so.
24.
Each party shall keep the other informed and provide details and an authority to the other of the child’s General Practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the other party shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment if any and these orders shall be sufficient authority for each party to do so.
25.
Remove all issues from the list of cases awaiting hearing.
26.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
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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