BEAU & SAIGER - [2020] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAU & SAIGER

[2020] FCCA 1389

Catchwords:
FAMILY LAW – Interim parenting orders – where parties could not complete final hearing in allotted time – where consent parenting arrangement already in place – where Family Report available but untested – where equal time and substantial and significant time not appropriate – appropriate orders for child to spend time with his father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65AA, 65D, 65DAA.

Cases cited:

Hall v Hall [1979] FamCA 73
M & M (1988) FLC 91-973
A & A & The Child Representative (1998) 22 FamLR 756
Goode & Goode (2006) FLC 93-286

Napier & Hepburn (2006) FLC 93-303

Johnson & Page (2007) FLC 93-344
Marvel & Marvel (2010) 240 FLR 367

Hannigan v Sorraw [2010] FamCAFC 257
Friscioni v Friscioni [2010] FamCAFC 108
MRR & GR (2010) 240 CLR 461
SS & AH [2010] FamCAFC 13
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93‑654
Grella & Jamison [2017] FamCAFC 21

Applicant:

MR BEAU

Respondent:

MS SAIGER

File Number:

SYC 1094 of 2017

Judgment of:

Judge Morley

Hearing date:

17 December 2019

Date of Last Submission:

18 December 2019

Delivered at:

Sydney

Delivered on:

10 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sansom SC

Solicitors for the Applicant:

Abrams Turner Whelan Family Lawyers

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Broun Abrahams Burreket

ORDERS

THAT PENDING FURTHER ORDERS, THE COURT ORDERS THAT:

That orders 3, 4 and 8 in the Minute of Interim Orders forming part of order 1 made on 4 July 2019 are vacated.
That the child X born in 2016 spend time with his father as follows:
(a)Each alternate week from 4.30PM on Wednesday until 8.30AM on Thursday, commencing from Wednesday 17 June 2020;
(b)from the next weekend on which X was due to spend time with his father under the orders made on 4 July 2019, each alternate weekend from 4.30PM on Friday until 5.00PM on Sunday; and
(c)from the first due weekend in September 2020, each alternate weekend from 4.30PM on Friday until 8.30AM on Monday.
That changeovers at the start and end of the father’s time with X on Wednesday and Thursday each week will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.
That changeovers at the start of the father’s alternate weekend time with X under order 2(b) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day, and will occur at the A Store at Suburb B at the end of such time.
That changeovers at the start and end of the father’s alternate weekend time with X under order 2(c) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.
That each parent notify the other parent and keep the other parent notified of their residential address, telephone number where they may…

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 BEAU & SAIGER

Details

AGLC: BEAU & SAIGER [2020] FCCA 1389
Case: [2020] FCCA 1389
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the matter of BEAU & SAIGER, Judge Morley of the Family Court of Australia considered interim parenting orders concerning a child, X, born in 2016. The proceedings arose because the parties were unable to complete a final hearing within the allotted time, despite an existing consent parenting arrangement and the availability of a Family Report, which had not yet been tested. The court's task was to determine appropriate interim orders for the child's time with his father, considering that equal time and substantial and significant time were deemed not appropriate in the circumstances.

The court was required to determine the specific arrangements for the child X to spend time with his father on an interim basis. This involved establishing a schedule for the father's time with X, including weekday and weekend arrangements, and specifying the commencement and duration of these periods. Additionally, the court needed to address practical matters such as the location of changeovers between parents and to implement orders designed to protect the child from parental denigration and ensure ongoing communication regarding the child's welfare.

Judge Morley reasoned that a phased approach to increasing the father's time with X was appropriate, commencing with weekday overnight stays and progressing to alternate weekends, with a further increase in weekend time scheduled for September 2020. The court also made orders regarding the location of changeovers, specifying locations such as the mother's residence, day care, or pre-school, and a particular store for weekend changeovers. Crucially, the court imposed restraints on both parents from denigrating each other or allowing X to be exposed to such denigration, and mandated communication regarding X's health, medication, and progress, particularly concerning sleeping difficulties. The court vacated certain previous interim orders and made new orders detailing the father's time with X, changeover arrangements, communication protocols, and prohibitions on denigration, pending further orders.

Orders

Orders of the court

THAT PENDING FURTHER ORDERS, THE COURT ORDERS THAT:

That orders 3, 4 and 8 in the Minute of Interim Orders forming part of order 1 made on 4 July 2019 are vacated.

That the child X born in 2016 spend time with his father as follows:

(a) Each alternate week from 4.30PM on Wednesday until 8.30AM on Thursday, commencing from Wednesday 17 June 2020;

(b) from the next weekend on which X was due to spend time with his father under the orders made on 4 July 2019, each alternate weekend from 4.30PM on Friday until 5.00PM on Sunday; and

That changeovers at the start and end of the father’s time with X on Wednesday and Thursday each week will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.

That changeovers at the start of the father’s alternate weekend time with X under order 2(b) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day, and will occur at the A Store at Suburb B at the end of such time.

That changeovers at the start and end of the father’s alternate weekend time with X under order 2(c) will occur at the mother’s place of residence or day care or pre-school, whichever applies on the day.

That each parent notify the other parent and keep the other parent notified of their residential address, telephone number where they may be contacted in the event of an emergency, and a current email address and shall notify the other of any change within 48 hours.

That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family and any member of the other parent’s household in the presence or hearing of X.

That each of the parents is restrained from allowing X to remain in the presence of, or within X’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

That the mother and the father will ensure that the other parent:

(a) Is kept informed as soon as is reasonable of any medical problems suffered by X whilst X is in their care including but not limited to notifying the other parent by telephone within two hours of X’s admission to hospital;

(b) Of any medication which has been prescribed or recommended by a medical practitioner for X; and

(c) Is kept informed of X’s progress and development during periods of time X is in their care and in particular in relation to X’s sleeping difficulties.

10.

That X spend time with his father on Wednesday, 10 June 2020 from 4.00PM until 6.30PM.

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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