BOYCE & BOYCE - [2013] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYCE & BOYCE

[2013] FCCA 1689

Catchwords:
FAMILY LAW – Parenting – consideration of weight to be given to the child’s view of not wanting to spend time with the father – consideration of whether child should spend time with the father.

Legislation:

Family Law Act 1975, s.68B

Re F: Litigants in person guidelines (2001) FLC93-072

Applicant:

MR BOYCE

Respondent:

MS BOYCE

File Number:

PAC 5761 of 2010

Judgment of:

Judge Dunkley

Hearing dates:

11 and 12 February 2013, 19, 20 and 21

June 2013 and 1 July 2013

Date of Last Submission:

31 July 2013

Delivered at:

Parramatta

Delivered on:

25 October 2013

REPRESENTATION

Applicant:

Self-Represented

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:	Ian Harper & Co
Counsel for the Independent Children’s Lawyer:	Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of NSW

ORDERS

All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children, X born (omitted) 1996 and Y born (omitted) 2000.
The children shall live with the mother.
The child, X, shall spend such time with the father as arranged between X and the father.
The child, Y, shall spend time with the father:
(a)Each alternate Saturday from 10.00am to 5.00pm commencing 2 November 2013;
(b)For such other times and days as the parties agree.
Each period of time that Y spends with the father shall begin and end in a supervised setting at the (omitted) Contact Centre unless the parties otherwise agree. Until the (omitted) Contact Centre can provide a supervised changeover facility or if the Centre is at any time unable to provide supervised changeover services, then changeovers shall occur in the foyer of the (omitted) Police Station.
The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the (omitted) Contact Centre and do all things to facilitate that Centre providing a supervised changeover service to the parties.
Each party shall pay one half of the total fee charged by the (omitted) Contact Centre.
The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the Keeping Contact Programme run by Unifam at (omitted) and thereafter do all things to engage with the Keeping Contact Programme for as long as the convenor requires.
The mother shall take Y to and ensure Y attends all appointments made for Y by any appropriate officer of the Keeping Contact Programme for as long as the convenor of the Keeping Contact Programme requires.
The mother is to notify the father about any medical or counselling appointments made for Y as soon as the appointment is made.
The mother is to continue to authorise any doctor or counsellor or treating professional consulted by Y to provide to the father any information that he seeks about Y arising as a result of her consultation.
The mother is restrained, pursuant to section 68B…

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 BOYCE & BOYCE

Details

AGLC: Boyce and Boyce [2013] FCCA 1689
Case: [2013] FCCA 1689
Decision Date: 25 October 2013

CaseChat Overview and Summary

In the matter of *Boyce & Boyce*, heard by Judge Dunkley, the dispute concerned parenting arrangements for two children, X and Y. The orders indicate a disagreement between the parents regarding the children's upbringing and time spent with each parent.

The court was required to determine the most appropriate parenting orders for the children, considering their best interests. This involved deciding on parental responsibility, living arrangements, and the nature and extent of the children's time with each parent, including the necessity for supervised contact and specific arrangements for changeovers. The court also addressed the children's surname and the communication between the parents regarding medical and counselling appointments.

Judge Dunkley ordered that the mother have sole parental responsibility for both children, with X to spend time with the father as arranged between them. Y was ordered to spend time with the father on alternate Saturdays, with all changeovers to occur in a supervised setting at a designated contact centre or police station foyer. The parties were directed to engage with a specific contact program and to facilitate the provision of supervised changeover services. The mother was restrained from changing Y's surname from "Boyce". The orders also included particulars of obligations and consequences for contravention under the *Family Law Act 1975*.

Orders

Orders of the court

All prior parenting orders are discharged.

The mother shall have sole parental responsibility for the children, X born (omitted) 1996 and Y born (omitted) 2000.

The children shall live with the mother.

The child, X, shall spend such time with the father as arranged between X and the father.

The child, Y, shall spend time with the father:

(a) Each alternate Saturday from 10.00am to 5.00pm commencing 2 November 2013;

(b) For such other times and days as the parties agree.

Each period of time that Y spends with the father shall begin and end in a supervised setting at the (omitted) Contact Centre unless the parties otherwise agree. Until the (omitted) Contact Centre can provide a supervised changeover facility or if the Centre is at any time unable to provide supervised changeover services, then changeovers shall occur in the foyer of the (omitted) Police Station.

The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the (omitted) Contact Centre and do all things to facilitate that Centre providing a supervised changeover service to the parties.

Each party shall pay one half of the total fee charged by the (omitted) Contact Centre.

The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the Keeping Contact Programme run by Unifam at (omitted) and thereafter do all things to engage with the Keeping Contact Programme for as long as the convenor requires.

10.

The mother shall take Y to and ensure Y attends all appointments made for Y by any appropriate officer of the Keeping Contact Programme for as long as the convenor of the Keeping Contact Programme requires.

11.

The mother is to notify the father about any medical or counselling appointments made for Y as soon as the appointment is made.

12.

The mother is to continue to authorise any doctor or counsellor or treating professional consulted by Y to provide to the father any information that he seeks about Y arising as a result of her consultation.

13.

The mother is restrained, pursuant to section 68B of the Family Law Act 1975, from doing any act or thing to change Y’s surname from “Boyce” or from doing any act or things permitting Y to be known by any surname other than “Boyce”.

14.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

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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