Bates and Henson - [2019] FCCA 60

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATES & HENSON

[2019] FCCA 60

Catchwords:
FAMILY LAW – Whether the children should live in a week-about equal shared care arrangement – whether the father has sufficient parenting capacity to care for the children’s needs – whether the father’s post-traumatic stress disorder affects his ability to control his temper such that it affects his parenting capacity.

Legislation:

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

Cases cited:

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102

Applicant:

MR BATES

Respondent:

MS HENSON

File Number:

DGC 3294 of 2015

Judgment of:

Judge Small

Hearing dates:

9 & 10 April 2018

Date of Last Submission:

10 April 2018

Delivered at:

Melbourne

Delivered on:

18 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Christine J Shanahan & Associates

Counsel for the Respondent:

Ms Cranenburgh

Solicitors for the Respondent:

None

ORDERS

In addition to the final orders made by consent on 10 April 2018 the court orders as follows:

The children [X] born …2004 (“[X]”) and [Y] born …2005 (“[X]”) (collectively “the children”) shall live with the parents in an equal shared care regime as follows:
(a)During the school year:
(i)     Each alternate week with the father from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school on the following Friday (or 3:30 p.m. if not a school day) commencing on the Friday prior to the first week of the 2019 school year;
(ii)    Each alternate week with the mother from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school (or 3:30 p.m. if not a school day) on the following Friday commencing on the Friday of the first week of the 2019 school year;
(iii)     at other times by agreement between the parties from time to time;
(b)During the long summer holidays:
(i)With the father by agreement between the parties and in default of agreement:
A.from the conclusion of school on the last day of term to 10:00 a.m. on the third Sunday, and from 10:00 a.m. on the fifth Sunday to 3:30 p.m. on the Friday prior to the commencement of the school year in 2019-2020;
B.from 10:00 a.m. on the fourth Sunday of the holidays to the conclusion of school on Friday of the first week of the new school year in 2020-2021 and in each alternate year thereafter; and
C.from the conclusion of school on the last day of the school year to 10:00 a.m. on the fourth Sunday in 2021-2022 and in each alternate year thereafter;
(ii)With the mother by agreement between the parties and in default of agreement:
A.from 10:00 a.m. on the third Sunday of the holidays to 10:00 a.m. on the fifth Sunday in 2019-2020;
B.from the conclusion of school on the last day of term to 10:00 a.m. on the fourth Sunday in 2020-2021…

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 Bates and Henson

Details

AGLC: Bates and Henson [2019] FCCA 60
Case: [2019] FCCA 60
Decision Date: 18 January 2019

CaseChat Overview and Summary

In *Bates and Henson*, heard before Judge Small, the dispute concerned parenting orders for two children, [X] and [Y]. The court was required to determine the living arrangements for the children, specifically whether an equal shared care regime was appropriate, and to make final orders in relation to these arrangements.

The court considered several factors in determining the children's living arrangements. It noted that an equal shared care order would likely result in reduced child support payments for the mother, Ms Henson, while the father, Mr Bates, would bear the full cost of the children when they were with him. The court also assessed the likely effect of any changes on the children, including the impact of spending less time with their mother, concluding that their relationships were robust enough to withstand such a change. The close proximity of the parents was identified as a factor that would reduce practical difficulties and expenses associated with the children spending time with both parents, and facilitate their right to maintain regular contact. Furthermore, the court found that both parents had a strong capacity to provide for the children's emotional and intellectual needs, despite concerns raised about Mr Bates' temper. Significant attention was also given to the provision of care for [X], who has severe disabilities and receives substantial NDIS funding, with her mother's home being adapted to meet her needs.

The court ordered that the children live with the parents in an equal shared care regime, detailing specific arrangements for school terms and long summer holidays, with provisions for agreement between the parties and default arrangements in the absence of agreement. All other extant applications were dismissed.

Orders

Orders of the court

In addition to the final orders made by consent on 10 April 2018 the court orders as follows:

The children [X] born …2004 (“[X]”) and [Y] born …2005 (“[X]”) (collectively “the children”) shall live with the parents in an equal shared care regime as follows:

(a) During the school year:

(i) Each alternate week with the father from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school on the following Friday (or 3:30 p.m. if not a school day) commencing on the Friday prior to the first week of the 2019 school year;

(ii) Each alternate week with the mother from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school (or 3:30 p.m. if not a school day) on the following Friday commencing on the Friday of the first week of the 2019 school year;

(iii) at other times by agreement between the parties from time to time;

(b) During the long summer holidays:

(i) With the father by agreement between the parties and in default of agreement:

A. from the conclusion of school on the last day of term to 10:00 a.m. on the third Sunday, and from 10:00 a.m. on the fifth Sunday to 3:30 p.m. on the Friday prior to the commencement of the school year in 2019-2020;

B. from 10:00 a.m. on the fourth Sunday of the holidays to the conclusion of school on Friday of the first week of the new school year in 2020-2021 and in each alternate year thereafter; and

C. from the conclusion of school on the last day of the school year to 10:00 a.m. on the fourth Sunday in 2021-2022 and in each alternate year thereafter;

(ii) With the mother by agreement between the parties and in default of agreement:

A. from 10:00 a.m. on the third Sunday of the holidays to 10:00 a.m. on the fifth Sunday in 2019-2020;

B. from the conclusion of school on the last day of term to 10:00 a.m. on the fourth Sunday in 2020-2021 and in each alternate year thereafter; and

C. from 10:00 a.m. on the fourth Sunday to 3:30 p.m. on the last Friday of the holidays in 2021-2022 and in each alternate year thereafter; and

All extant applications are otherwise dismissed and removed from the Pending Cases List.

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

Of course, if the children were to live with each parent on an equal shared care basis, Ms Henson would be assessed to receive less child support, but at the same time, Mr Bates would be bearing the full cost of the children when they live with him.(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; If I were to make an order for equal shared care in this matter, the children would necessarily spend less time with their mother than they have been used to. Ms D’s view was that the relationships of both children with Ms Henson are robust enough that their quality would not be diminished by that change. The fact that the parents now live very close to each other means that if either of the children wished to spend time with one parent during the other parent’s time, it would be reasonably easy for the parents to facilitate should they wish to do so. I note that at the time of trial, the children were each spending one evening a week with each parent in the absence of the other child. That situation appears to be working well for both children, although the proposal of the mother is that the time be overnight as a result of these proceedings rather than simply an afternoon after school and dinner before the child is returned to her.(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; Given the parties’ now close proximity, there is much less practical difficulty in the children spending time with both, and that fact also diminishes the expense involved.(f) the capacity of:(i)each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs; All the evidence before the court, including the evidence of both parents and Ms D, leads the court to find that each of these children’s parents has a strong capacity to provide for the children’s emotional and intellectual needs. As previously stated, both are well attuned to the emotional needs of each child, despite Ms Henson’s concerns about Mr Bates’ temper, and both have ensured that both children have all the educational assistance they are able to access. However, considerable attention was paid at trial to how [X]’s NDIS funding is applied, as she requires significant assistance in completing everyday personal tasks. [X]’s NDIS package is worth approximately $210,000 per year, and Ms Henson’s house has been fitted with all the equipment needed for [X] to live as independently as is possible given her severe disabilities.