Beringer and Yue - [2019] FamCA 290

FAMILY COURT OF AUSTRALIA

BERINGER & YUE

[2019] FamCA 290

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father seeks to extend the time he presently sends with the child to include overnight time – Where the mother opposes the father spending any time with the father – Where the mother asserts that the father has sexually abused the child – Where there is no evidence to support that contention – Where the child’s relationship with the father has been observed by the family consultant to improve – Where the family consultant considers any overnight time should be the subject of the child’s wishes – Orders made.

Family Law Act 1975 (Cth) 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA

Baglio & Baglio [2013] FamCA 105
Mazorski & Albright [2007] FamCA 520
N & S & The Separate Representative (1996) FLC 92-655

APPLICANT:

Mr Beringer

RESPONDENT:

Ms Yue

INDEPENDENT CHILDREN’S LAWYER:

Silkwoods

FILE NUMBER:

ADC

2878

2013

DATE DELIVERED:

8 May 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Olsson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Silkwoods

Orders

That the parties have equal share parental responsibility for Y born … 2009 (“the child”).
That the child live with the mother.
That the child spend time with the father as follows:-
(a)From 10.00 am to 6.00 pm Saturday and each alternate weekend thereafter;
(b)From 10.00 am to 6.00 pm on Easter Saturday;
(c)From 12 noon to 5.00 pm on 25 December;
(d)Such further and other times as the parties may agree.
That each party be entitled to attend all events involving the child including:-
(a) Sporting events;
(b) Extra-curricular activities that allow for parental attendance;
(c)School functions and events which allow for parental attendance including but not limited to concerts, school assemblies, school days, parent/teacher interviews and social functions; and
(d)Medical appointments, specialist appointments and allied health appointments.
That each party shall immediately notify the other party should the child be hospitalised, suffer serious medical or life incident and further, each party shall notify the other of any medical treatment the child receives and the identity of the treating doctor as soon as practicable after the child has received such treatment.
That each party shall keep the other informed of their residential address, postal address, landline telephone number, mobile telephone number and email address at all times.
That the mother shall forthwith authorise the child’s school and medical practitioners to provide the father upon his request and expense the following:-
(a)Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices regarding the educational needs of the child; and
(b)Copies of medical reports including any referrals, information regarding any medical treatment suffered by the child including treatment and any other information or material…

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 Beringer and Yue

Details

AGLC: Beringer and Yue [2019] FamCA 290
Case: [2019] FamCA 290
Decision Date: 8 May 2019

CaseChat Overview and Summary

In the matter of *Beringer and Yue*, Berman J of the Federal Circuit and Family Court of Australia made orders concerning parental responsibility and the time the child, Y, would spend with each parent. The dispute centred on arrangements for the child following the breakdown of the parents' relationship.

The court was required to determine the most appropriate arrangements for the child's living situation, the time the child would spend with each parent, and the extent of each parent's involvement in the child's education, health, and general wellbeing. This included considerations regarding communication between the parents and the child, and the release of the child's passport.

Berman J ordered that the parties share equal parental responsibility for the child. The child was to live with the mother, and spend time with the father on alternate weekends, specific public holidays including Easter Saturday and Christmas Day, and such other times as the parties might agree. The orders also stipulated that both parents could attend the child's sporting events, extra-curricular activities, school functions, and medical appointments. Further provisions addressed immediate notification of hospitalisation or serious medical incidents, ongoing communication of contact details, and the mother's authorisation for the father to obtain school and medical reports at his expense. The court retained the child's passport, to be released only upon the joint written consent of both parties.

Orders

Orders of the court

That the parties have equal share parental responsibility for Y born … 2009 (“the child”).

That the child live with the mother.

That the child spend time with the father as follows:-

(a) From 10.00 am to 6.00 pm Saturday and each alternate weekend thereafter;

(b) From 10.00 am to 6.00 pm on Easter Saturday;

(d) Such further and other times as the parties may agree.

That each party be entitled to attend all events involving the child including:-

(a) Sporting events;

(b) Extra-curricular activities that allow for parental attendance;

(c) School functions and events which allow for parental attendance including but not limited to concerts, school assemblies, school days, parent/teacher interviews and social functions; and

(d) Medical appointments, specialist appointments and allied health appointments.

That each party shall immediately notify the other party should the child be hospitalised, suffer serious medical or life incident and further, each party shall notify the other of any medical treatment the child receives and the identity of the treating doctor as soon as practicable after the child has received such treatment.

That each party shall keep the other informed of their residential address, postal address, landline telephone number, mobile telephone number and email address at all times.

That the mother shall forthwith authorise the child’s school and medical practitioners to provide the father upon his request and expense the following:-

(a) Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices regarding the educational needs of the child; and

(b) Copies of medical reports including any referrals, information regarding any medical treatment suffered by the child including treatment and any other information or material concerning the health and wellbeing of the child.

That the father be permitted to speak to the child via telephone each Monday and Thursday between the hours of 6.00 pm and 7.00 pm and that each of the parties will facilitate any request made by the child to telephone and/or make communication with the other party.

UPON NOTING that the Court continues to hold the child’s passport, the Registrar of this Court shall only release the child’s passport to the mother upon the joint written consent of the parties.

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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