FAMILY COURT OF AUSTRALIA
| BILZ & BREUGELMAN | [2013] FamCA 578 |
| FAMILY LAW – CHILDREN – Parental Responsibility – best interests – where the presumption of equal shared parental responsibility applied – parents to have equal shared parental responsibility, as agreed – father made allegations of the child’s sexual abuse by the mother and contended she posed an unacceptable risk of abuse to the child, which allegations were withdrawn. FAMILY LAW – CHILDREN – With whom the child shall live and spend time – child to live with the mother and spend substantial and significant time with the father, as agreed – debate over the precise time the child would spend with the father – child to spend four nights per fortnight with the father during school terms – little weight attributed to the child’s view due to her young age and immaturity. FAMILY LAW – CHILDREN – Choice of school – mother deeply religious, but father not religious – Re G (Children’s Schooling) (2000) FLC 93-025 and Eden & Eden-Proust [2011] FamCAFC 138 explain the considerations relating to the child’s best interests in the context of a determination about which school a child should attend – child’s enrolment to change from a religious school to a public school in close proximity to the mother’s residence at the beginning of the next academic year – child to attend scripture classes at the public school. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65 DAA, 65DAC, 65DAE |
| AMS v AIF (1999) 199 CLR 160 Eden & Eden-Proust [2011] FamCAFC 138 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Marriage of L & T (1999) 25 Fam LR 590 MRR v GR (2010) 240 CLR 461 Re G (Children’s Schooling) (2000) FLC 93-025 Sampson v Hartnett (No.10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Bilz |
| RESPONDENT: | Ms Breugelman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Scally, Legal Aid NSW |
| FILE NUMBER: | NCC | 1816 | of | 2012 |
| DATE DELIVERED: | 9 August 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 22, 23, 24 & 25 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A Mooney |
| SOLICITOR FOR THE APPLICANT: | Jennifer Blundell & Associates |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Mr Meredith, Meredith Saayman Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke, Legal Aid NSW |
Orders
All former orders relating to the child T Bilz, born … 2008, (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
Unless otherwise agreed, each party shall do all things necessary to:
(a)Terminate the child’s enrolment at and withdraw her from the school she currently attends, at the conclusion of the 2013 academic year; and
(b)Enrol the child and ensure her attendance at the public school situated nearest to the mother’s residence from the commencement…
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- Bilz & Breugelman [2013] FamCA 578
- Case
- [2013] FamCA 578
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the application of the presumption of equal shared parental responsibility, the specific time the child would spend with each parent, and the determination of the child's schooling, particularly in light of the parents' differing religious beliefs. The court also considered the weight to be given to the child's views, given her young age and immaturity.
Applying the principles of best interests of the child, the court ordered equal shared parental responsibility. The child was to live with the mother and spend substantial and significant time with the father, with specific arrangements detailed for school terms and holidays. Regarding schooling, the court ordered the child's enrolment to change from a religious school to a public school near the mother's residence, and for the child to attend scripture classes at the new school, referencing established case law on educational decisions. The court also made orders restraining denigration of a parent and requiring parties to keep each other informed of contact details, and to complete a post-separation parenting program.
Orders
Orders of the court
1.
All former orders relating to the child T Bilz, born … 2008, (“the child”) are discharged.
2.
The parties shall have equal shared parental responsibility for the child.
3.
Unless otherwise agreed, each party shall do all things necessary to:
(a) Terminate the child’s enrolment at and withdraw her from the school she currently attends, at the conclusion of the 2013 academic year; and
(b) Enrol the child and ensure her attendance at the public school situated nearest to the mother’s residence from the commencement of the 2014 academic year.
4.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child attends any scripture classes offered at the public school she attends from 2014 onwards.
5.
The child shall live with the mother.
6.
Each party shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a) During school terms:
(i) Each alternate week from after school or 3.00 pm on Thursday (whichever is the later) until 9.30 am on Sunday, commencing on the first Thursday of each term; and
(ii) Each alternate week from after school or 3.00 pm on Thursday (whichever is the later) until the commencement of school or 9.00 am on Friday (whichever is the earlier), commencing on the second Thursday of each term; and
(b) During school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and
(c) During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year; and
(d) Between 6.00 pm and 8.00 pm on 1 March each year, when that date falls on a day when the child does not already spend time with the father pursuant to these orders.
7.
Unless otherwise agreed, Order 6 hereof is suspended during the following periods:
(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years;
(b) From 6.00 pm on Easter Saturday until 6.00 pm on Easter Sunday each year, during which period the child shall spend time with the mother;
(c) From 5.00 pm on Saturday on each Mother’s Day and Father’s Day weekends, from which time the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend; and
(d) From 6.00 pm until 8.00 pm on 1 March each year, but only if that date falls on a day when the child is already spending time with the father, in which case the child shall spend that time with the mother.
8.
For the purposes of implementation of Order 6 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the following school term, and the mid-point is 12.00 noon on the day halfway between those first and last days.
9.
For the purposes of implementing Orders 6 and 7 hereof, the parties shall respectively ensure the child’s:
(a) Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b) Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and
(c) Otherwise, her collection from and return to the car park adjacent to the A Health Centre.
10.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
11.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
12.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the family consultant.
13.
Leave is granted to the parties to provide a copy of these orders to the principal of the schools attended by the child and the child’s medical practitioners.
14.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
15.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
16.
Costs are reserved for 28 days.
17.
Any and all outstanding applications are dismissed.
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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