BEHN & ZIOMEK - [2017] FamCA 847

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK

[2017] FamCA 847

FAMILY LAW – CHILDREN – Where there is one child of the relationship – Where there are allegations of family violence by the mother against the father – Where there are allegations that the mother is alienating the child from the father – Where the father sought to vary previous orders to increase the time he spends with the child – Where the father sought orders to extend the block periods of time that the child spends with him over the 2017/2018 Christmas school holidays – Where the father sought that changeovers occur at a restaurant rather than a Police Station – Where it is not appropriate for the presumption of equal shared parental responsibility to apply – Section 60CC considerations – Court finds Police Station should to continue to be the location for changeover – Court finds that the father’s block time with the child over the 2017/2018 Christmas school holidays should be in block periods of no more than five nights – Orders made that, following the commencement of school, the child’s time with the father be from 5.00pm on Friday to 5.00pm on Sunday in week one and from 5.00pm on Friday until 5.00pm on Saturday in week two.

Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Family Law Rules 2004 (Cth) r 15.41, pt 15

B and B (1993) FLC 92-357
Behn & Ziomek [2014] FamCA 157
Behn & Ziomek [2015] FamCA 1185
Behn & Ziomek [2016] FamCA 907
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling (1998) FLC 92-801
Johnson and Page (2007) FLC 93-344
Keats & Keats [2016] FamCAFC 156
M v M (1988) 166 CLR 69
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Mazorski & Albright (2007) 37 Fam LR 518
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Newton & Henzel [2016] FamCA 323
Potter and Potter (2007) FLC 93-326
Rice v Asplund (1978) 6 Fam LR 560

SS v AH [2010] FamCAFC 13

Salah & Salah (2016) FLC 93‑713

Sigley v Evor (2011) 44 Fam LR 439
Stott & Holger and Anor [2017] FamCAFC 152

APPLICANT:

Mr Behn

RESPONDENT:

Ms Ziomek

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

NCC

2014

DATE DELIVERED:

25 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

4 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Cohen of David H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kelso of Legal Aid New South Wales

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Order 2 of the orders made on 28 October 2016 be discharged.
The father is to spend time with the child, L born … 2012, as follows:

Until the commencement of school term in 2018:

(a)In week one (being…

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 BEHN & ZIOMEK

Details

AGLC: BEHN & ZIOMEK [2017] FamCA 847
Case: [2017] FamCA 847
Decision Date: 25 October 2017

CaseChat Overview and Summary

In BEHN & ZIOMEK, heard by McClelland J, the father sought to vary previous parenting orders concerning their child, L. The dispute involved allegations of family violence by the mother against the father and claims that the mother was alienating the child from the father. The father's application included requests to increase his time with the child, extend block periods of time over the 2017/2018 Christmas school holidays, and change the location of changeovers from a police station to a restaurant.

The court was required to determine whether the presumption of equal shared parental responsibility was appropriate in the circumstances, considering the allegations of family violence and alienation. It also needed to decide on the appropriate arrangements for the father's time with the child, particularly during the upcoming Christmas school holidays and thereafter, as well as the location for the handover of the child.

McClelland J found that the presumption of equal shared parental responsibility was not appropriate given the circumstances. The court reasoned that the police station should continue to be the location for changeovers, deeming it inappropriate to change this arrangement. Furthermore, the court determined that the father's block time with the child over the 2017/2018 Christmas school holidays should be limited to periods of no more than five nights.

The court made orders reflecting these findings. From the commencement of school in 2018, the child's time with the father was ordered to be from 5.00pm on Friday to 5.00pm on Sunday in week one and alternate weeks, and from 5.00pm on Friday to 5.00pm on Saturday in week two and alternate weeks. The matter was listed for a final hearing.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Order 2 of the orders made on 28 October 2016 be discharged.

The father is to spend time with the child, L born … 2012, as follows:

Until the commencement of school term in 2018:

(a) In week one (being the week commencing on Monday, 30 October 2017) and each alternative week thereafter, from 9.30am Friday to 4.30pm Sunday;

(b) In week two (being the week commencing on Monday, 6 November 2017) and each alternate week thereafter, from 9.30am Thursday to 4.30pm Friday;

(d) From 12 noon on 24 December 2017 until 12 noon on 25 December 2017;

From the commencement of school in 2018:

(e) In week one and each alternate week thereafter, from 5.00pm Friday to 5.00pm Sunday;

(f) In week two and each alternate week thereafter, from 5.00pm Friday to 5.00pm Saturday;

(g) During the school holidays in 2018, the time in week one is extended to conclude at 5.00pm Tuesday; and

(h) At such other times as agreed between the parties in writing.

AND THE COURT NOTES THAT:

A. The matter remains listed for final hearing for 5 days commencing on 19 March 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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