BEST & TYERS - [2016] FamCA 1093

FAMILY COURT OF AUSTRALIA

BEST & TYERS

[2016] FamCA 1093

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Best interests – where the applicant mother seeks final orders on an undefended basis – where the family has had historical involvement with the Department of Health and Human Services – where the evidence is untested – order that the child live with the mother and spend time with the father

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the mother seeks to have the matter heard on an undefended basis in circumstances where the father has filed a Notice of Discontinuance – where the father has filed no new material and has not participated in the proceedings since filing the Notice of Discontinuance – where the father has completed an Acknowledgment of Service- where procedural fairness has been afforded to the father – application granted

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 64B and 65DAA

Allesch & Maunz (2000) 203 CLR 172
Lorde & Chu [2014] FamCAFC 228 at [36]

APPLICANT:

Ms Best

RESPONDENT:

Mr Tyers

FILE NUMBER:

MLC

3122

2016

DATE DELIVERED:

15 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

28 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Epstein

SOLICITOR FOR THE APPLICANT:

Samantha Ward Pty

THE RESPONDENT:

No appearance

Orders

That the parents have equal shared parental responsibility for the child of the relationship B born … 2012.
That the child live with the mother.
That the child spend time with and communicate with the father as follows:
(a)       Every Monday, Wednesday and Friday by telephone or Skype between 6pm and 6.30pm;
(b)       Any weekend in Victoria when the father is able to accommodate same providing the father shall give the mother at least 14 days prior notice of his intention to exercise such time with changeovers to occur at McDonalds C Town;
(c)       Otherwise as agreed between the mother and father.
For the purposes of communication of information between the parties, the mother and the father shall communicate by:
(a) Telephone for matters of an urgent nature; and otherwise
(b) Text message or email for day to day matters including arranging for each party to spend time with the child.
Neither party shall denigrate the other party or allow any other person to do so in the presence or hearing of the child.
In the event the child is hospitalised the parent in whose care the child is shall notify the other parent as soon as practicable on the first contact with the hospital.
Each parent shall keep the other informed of:
(a) Any doctor the child attends whilst the child is in their care and any medication which is prescribed for the child; and
(b) Any religious or school events that the child is to attend.
Both parties are entitled to receive school reports, newsletters, and any written advice affecting the education of the child from any school attended by…

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 BEST & TYERS

Details

AGLC: BEST & TYERS [2016] FamCA 1093
Case: [2016] FamCA 1093
Decision Date: 15 December 2016

CaseChat Overview and Summary

In the Family Court of Australia, Thornton J considered an application by the mother for final parenting orders concerning the child B. The proceedings were undefended, with the father having filed a Notice of Discontinuance. The family had a history of involvement with the Department of Health and Human Services, and the evidence presented was untested.

The court was required to determine whether to grant the final parenting orders sought by the mother on an undefended basis, despite the father's discontinuance of his participation in the proceedings. A key issue was whether procedural fairness had been afforded to the father, given his prior acknowledgment of service and subsequent lack of engagement. The court also had to consider the best interests of the child in making final orders.

Thornton J reasoned that procedural fairness had been met as the father had been served with the application and had not filed any new material or participated since filing his Notice of Discontinuance. The court found that the father had been afforded an opportunity to participate and that the mother's application could proceed on an undefended basis. Applying the principles of the best interests of the child, the court made orders that the parents have equal shared parental responsibility, that the child live with the mother, and spend time with and communicate with the father in specified ways, including regular telephone contact and weekend time by agreement. Further orders addressed communication between the parents, prohibitions on denigration, notification of hospitalisation, and the exchange of information regarding the child's health and education. The father was granted liberty to apply to vary or set aside the orders within 28 days of them being sent to his address for service.

Orders

Orders of the court

That the parents have equal shared parental responsibility for the child of the relationship B born … 2012.

That the child live with the mother.

That the child spend time with and communicate with the father as follows:

(a) Every Monday, Wednesday and Friday by telephone or Skype between 6pm and 6.30pm;

(b) Any weekend in Victoria when the father is able to accommodate same providing the father shall give the mother at least 14 days prior notice of his intention to exercise such time with changeovers to occur at McDonalds C Town;

For the purposes of communication of information between the parties, the mother and the father shall communicate by:

(a) Telephone for matters of an urgent nature; and otherwise

(b) Text message or email for day to day matters including arranging for each party to spend time with the child.

Neither party shall denigrate the other party or allow any other person to do so in the presence or hearing of the child.

In the event the child is hospitalised the parent in whose care the child is shall notify the other parent as soon as practicable on the first contact with the hospital.

Each parent shall keep the other informed of:

(a) Any doctor the child attends whilst the child is in their care and any medication which is prescribed for the child; and

(b) Any religious or school events that the child is to attend.

Both parties are entitled to receive school reports, newsletters, and any written advice affecting the education of the child from any school attended by the child.

Each party shall keep the other party advised of their current address, current telephone number and current email address.

10.

Any changes are to be advised to the other party within 24 hours of the change occurring.

11.

Each party shall be entitled to receive at their respective expense school reports, school notices, school photographs and the like.

12.

Each party is entitled to attend any school events which parents would usually attend.

13.

The father have liberty to apply to vary or set aside these orders pursuant to the Family Law Rules 2004 (Cth) within 28 days of a copy of these Orders being sent to his address for service.

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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