Beasley and Jeffreys - [2011] FMCAfam 713

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEASLEY & JEFFREYS

[2011] FMCAfam 713

FAMILY LAW – Parenting – dispute as to the time the step-father is to spend with the adopted 11 year old son of the mother where parties’ relationship is highly conflicted – orders previously made by consent in August 2009 – mother argued step-father’s application should be dismissed pursuant to the rule in Rice v Asplund – found significant change in circumstances because of the very strong views of child expressed to the Independent Children’s Lawyer and Family Report Writer – ordered child spend increased time with the step-father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 64B

Rice v Asplund (1979) FLC 90-725
In the Marriage of Bennett (1991) FLC 92-191
Potts & Bims [2007] FamCA 394
SPS & PLS (2008) FLC 93-363
Marsden & Winch [2009] Fam CAFC 152
Aldridge v Keaton (2009) 42 Fam LR 369
Donnell v Dovey (2010) 42 Fam LR 559
Simpson v Brockman (2010) 43 Fam LR 32

Applicant:

MR BEASLEY

Respondent:

MS JEFFREYS

File Number:

MLC 13517 of 2007

Judgment of:

Bender FM

Hearing dates:

9 & 10 June 2011 and 14 July 2011

Date of Last Submission:

14 July 2011

Delivered at:

Melbourne

Delivered on:

18 August 2011

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Mr O'Shannessy

Solicitors for the Respondent:

Moores Legal

Counsel for the Independent Children’s Lawyer:

Mr O'Connell

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

All previous orders in respect to the child [X] born [in] 1999 (“[X]”) be discharged.
The mother retain sole parental responsibility for [X].
Prior to the mother enrolling [X] in any school or authorising any major medical procedure for [X] (save in an emergency), the mother shall inform the step-father of her proposal and, in the event the step-father responds to such proposal in a timely manner, consider the step-father’s response and inform him of her decision.
[X] live with the mother.
[X] spend time and communicate with the step-father as follows:
(a)during school terms:
(i)commencing in the first week of each school term, or in the event the step-father is commencing his week offshore in the first week, commencing the second week of each school term, from after school Thursday to before school Tuesday and every four weeks thereafter;
(ii)commencing in the third week of each school term, or in the event the step-father is commencing his week offshore in the third week, commencing the fourth week of each school term, from 9.00 am Sunday to before school Tuesday and every four weeks thereafter; and
(iii)the time [X] is to spend with the step-father pursuant to orders 5(a)(i) and (ii) herein shall commence in this term only in the same cycle as is in place for [X]’s time with the step-father pursuant to the 6 August 2009 orders;
(b)in the school term holidays as follows:
(i)for five consecutive nights in the second term holidays as agreed…

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 Beasley and Jeffreys

Details

AGLC: Beasley and Jeffreys [2011] FMCAfam 713
Case: [2011] FMCAfam 713
Decision Date: 18 August 2011

CaseChat Overview and Summary

The matter of Beasley and Jeffreys was heard in the Family Court of Australia. The parents of [X], born in 1999, were involved in a dispute regarding parental responsibility and time-sharing arrangements. The mother, Beasley, and the step-father, Jeffreys, were the primary parties contesting the matter. The court was tasked with determining the best interests of [X] in terms of parental responsibility, living arrangements, and visitation schedules.

The legal issues before the court included determining the allocation of parental responsibility, establishing a detailed time-sharing arrangement that balanced the needs of [X] with the practicalities of the parents’ lives, and setting conditions to facilitate communication and cooperation between the parties. The court had to consider the primary care needs of [X], the importance of both parents in [X]'s life, and the need for stability and continuity in [X]'s upbringing. Additionally, the court needed to address the logistical challenges of maintaining a relationship between [X] and the step-father, given the latter’s offshore work commitments.

In its decision, the court discharged all previous orders concerning [X] and awarded sole parental responsibility to the mother. The court mandated that the mother inform the step-father of any significant decisions regarding [X], such as school enrolment or major medical procedures, and consider his response. The detailed time-sharing arrangement outlined in the orders was designed to ensure that [X] maintains a meaningful relationship with the step-father while living primarily with the mother. The schedule was crafted to accommodate the step-father’s offshore work, ensuring that [X] has regular and structured contact with both parents. The court also imposed obligations on both parents to communicate and cooperate effectively, including provisions for travel and medical information sharing. Finally, the court imposed restrictions on both parents to prevent any form of disparagement towards each other in the presence of [X].

The final orders reflect a balanced approach, prioritizing [X]'s best interests by ensuring a stable living arrangement with the mother while providing the step-father with substantial and regular time to foster his relationship with [X].

Orders

Orders of the court

All previous orders in respect to the child [X] born [in] 1999 (“[X]”) be discharged.

The mother retain sole parental responsibility for [X].

Prior to the mother enrolling [X] in any school or authorising any major medical procedure for [X] (save in an emergency), the mother shall inform the step-father of her proposal and, in the event the step-father responds to such proposal in a timely manner, consider the step-father’s response and inform him of her decision.

[X] live with the mother.

[X] spend time and communicate with the step-father as follows:

(a) during school terms:

(i) commencing in the first week of each school term, or in the event the step-father is commencing his week offshore in the first week, commencing the second week of each school term, from after school Thursday to before school Tuesday and every four weeks thereafter;

(ii) commencing in the third week of each school term, or in the event the step-father is commencing his week offshore in the third week, commencing the fourth week of each school term, from 9.00 am Sunday to before school Tuesday and every four weeks thereafter; and

(iii) the time [X] is to spend with the step-father pursuant to orders 5(a)(i) and (ii) herein shall commence in this term only in the same cycle as is in place for [X]’s time with the step-father pursuant to the 6 August 2009 orders;

(b) in the school term holidays as follows:

(i) for five consecutive nights in the second term holidays as agreed between the parties and failing agreement commencing at 9.00am on the first full day the step-father is not at work after the last day of the school term for the school that [X] attends; and

(ii) for the whole of the third term holidays from after school on the last day of third term to before school on the first day of fourth term;

(c) for the second half of the long summer vacation in 2011/2012 and each alternate year thereafter, with such time to commence at 10.00 am on the day that is three days prior to the middle day in the school holiday period and conclude at 6.00 pm on the fourth day prior to the school year recommencing;

(d) for the first half of the long summer vacation in 2012/2013 and each alternate year thereafter, commencing at 9.00 am on the first Saturday of the holidays and concluding at 6.00 pm on the middle day of those holidays;

(e) from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2011 and each alternate year thereafter;

(f) from 10.00 am Christmas Eve to 10.00 am Christmas Day 2012 and each alternate year thereafter;

(g) if [X] is not otherwise spending time with the step-father pursuant to these orders, from 10.00 am to 6.00 pm on Father’s Day;

(h) if [X] is not otherwise spending time with the step-father pursuant to these orders, on [X]’s birthday and the step-father’s birthday, subject to the step-father being in Melbourne at such times, as agreed between the parties, and failing agreement:

(i) if on a school day from after school to 6.30 pm; and

(ii) if on a weekend day from 11.00 am to 3.00 pm;

(i) by telephone each Monday of any week that the step-father does not spend time with [X], during either school terms or holiday time, between the hours of 7.00 pm and 8.00 pm, with the

step-father to initiate the call, the mother to facilitate such call and such call to be no longer than 30 minutes duration; and

(j) as otherwise agreed between the parties.

If [X] is spending time with the step-father pursuant to these orders, such time shall be suspended as follows:

(a) from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2012 and each alternate year thereafter;

(b) from 10.00 am Christmas Eve to 5.00 pm Christmas Day 2011 and each alternate year thereafter;

(c) for the first half of the long summer vacation 2011/2012 and each alternate year thereafter, with such time to commence after school on the last day of term and conclude at 10.00am on the day three days prior to the middle day of those holidays;

(d) for the second half of the long summer vacation in 2012/2013 and each alternate year thereafter, with such time to commence at 6.00 pm on the middle day of those holidays;

(e) for the whole of the first term school holidays;

(f) if [X] is not otherwise living with the mother pursuant to these orders, from 10.00 am to 6.00 pm on Mother’s Day; and

(g) if [X] is not otherwise living with the mother pursuant to these orders, on [X]’s birthday and the mother’s birthday, as agreed between the parties, and failing agreement:

(i) if on a school day from after school to 6.30 pm; and

(ii) if on a weekend day from 11.00 am to 3.00 pm.

For the purposes of [X] spending time with the step-father pursuant to these orders and unless otherwise specified in these orders, in the event [X] is not at school on the day he either commences or concludes time with the step-father, such time shall commence at 9.00 am and conclude at 6.00 pm.

In the event the mother intends to travel interstate or overseas with [X], she shall, no less than seven days prior to such travel, advise the step-father as to the intended destination, departure and return dates and ensure the step-father has a telephone number upon which he can contact the mother in case of emergency and speak to [X] in accordance with order 5(i) herein.

When spending time with [X] pursuant to these orders, the step-father is permitted to take [X] interstate or to country Victoria subject to the step-father:

(a) advising the mother by email no less than seven days prior to such proposed travel of the intended destination; and

(b) providing the mother by email details of where [X] will be staying when interstate or in country Victoria, including the address of such accommodation and a contact telephone number.

10.

If the step-father travels interstate or to country Victoria with [X] pursuant to order 9 herein, the step-father shall:

(a) advise the mother by text message of their safe arrival at their destination within one hour of such arrival; and

(b) ensure [X] telephones his mother no less than every third day of any such travel between 6.00 pm and 7.00 pm Melbourne time.

11.

To facilitate [X] travelling interstate with the step-father, the mother shall provide the step-father with a certified copy of [X]’s passport on or before 31 August 2011.

12.

When [X] is spending time with the step-father pursuant to orders 5(b)(ii), 5(c) and 5(d) herein, the step-father shall be permitted to travel overseas with [X] upon the step-father providing to the mother 28 days prior to such time:

(a) written notice of his intention to travel overseas with [X]; and

(b) a full itinerary of the intended overseas travel including all flight details, details of any proposed tours or internal travel arrangements and details of where [X] will be staying including the name and address of any hotel and the address of any private accommodation; and

step-father in case of emergency.

13.

If the step-father travels overseas with [X] pursuant to order 12 herein, the step-father shall:

(a) ensure he contacts the mother by text message within two hours of arrival to confirm [X]’s safe arrival;

(b) ensure [X] telephones the mother no less than every third day of any such travel at a time suitable to [X] and the mother; and

14.

In the event the step-father notifies the mother of his intention to travel overseas with [X] pursuant to order 12 herein, the mother shall, within 14 days of such notification, provide to the step-father [X]’s passport. The step-father shall return [X]’s passport to the mother within seven days of their return to Australia.

15.

The step-father shall be referred to as [X]’s “step-father” on all school and extra-curricular activity enrolment forms, including but not limited to school, after-school care, sporting teams and scouts, and shall be listed as the first emergency or alternate contact on such forms after the mother.

16.

The step-father be authorised to:

(a) obtain copies of all school reports, school notices, newsletters and school photograph order forms, at his expense, that are generally provided by schools to parents or carers;

(b) obtain copies of all notices, newsletters and photograph order forms generally provided to parents or carers by the organisers of [X]’s extra-curricular activities;

(c) attend school events such as concerts, plays, sporting events, open days, school fetes, speech nights, Father’s Day or special person’s day activities, volunteer at the canteen and speak to [X]’s teachers, save that he is not authorised to attend formal parent/teacher interviews without the consent of the mother;

(d) attend [X]’s extra-curricular and sporting activities;

(e) be included as [X]’s step-father on any school or

extra-curricular activity telephone list and obtain a copy of those lists; and

(f) attend and participate in school excursions when [X] is spending time with him pursuant to these orders where parents/carers are invited by the school to do so.

17.

The mother shall advise the step-father by email no later than 72 hours after she:

(a) enrols [X] in any extra-curricular activity or sporting activity; and/or

(b) receives notice of the scheduling or re-scheduling of any of [X]’s extra-curricular activities, sporting activities or social functions to which [X] has been invited which will fall or are likely to fall during any period that [X] is scheduled to spend time with the step-father, including the location and time of the activity or function.

18.

During the time [X] spends with the step-father pursuant to these orders, the step-father shall take [X] to any organised extra-curricular activity or sporting activity that [X] would usually attend and to any social functions such as birthday parties to which he has been invited, save that in the event such organised extra-curricular activities, sporting activities or social functions fall during the time [X] spends with the step-father pursuant to orders 5(b), (c) and (d) herein (being school holidays), [X]’s attendance at such events shall be at the discretion of the step-father.

19.

Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.

20.

Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person to do so.

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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