Bryant and Stapleton - [2008] FamCA 451

FAMILY COURT OF AUSTRALIA

BRYANT & STAPLETON

[2008] FamCA 451

FAMILY LAW – CHILDREN - With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

MR BRYANT

RESPONDENT:

MS STAPLETON

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

18 JUNE 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

11, 12, 13, 16, 17 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR WEIL

SOLICITOR FOR THE APPLICANT:

SAINES & PARTNERS

COUNSEL FOR THE RESPONDENT:

MR TESTART

SOLICITOR FOR THE RESPONDENT:

JEREMY HARPER & ASSOCIATES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That the parties retain equal shared parental responsibility for the child … born … May 2003 (“the child”).
That the child live with the father on a two weekly cycle as follows:
(A)Until the child commences primary school:
(a)    In week one from 9.00 am Friday until the commencement of kindergarten or 9.00am on the following Tuesday save that the father shall ensure that the child attends kindergarten on Monday if it is a scheduled kindergarten day commencing on 20 June 2008;
(b)    In week two from the conclusion of kindergarten or 1.30 pm on Thursday until 5.00 pm on Friday commencing 27 June 2008;
(c)    For one half of the long summer school holiday in 2008/9 on an alternating week basis commencing from 3.30 pm on the last day of kindergarten, and changeover shall be at 3.30 pm each week.
(d)    By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate and the mother to facilitate such calls;
(e)    That all changeovers that do not take place at kindergarten take place at McDonalds or as agreed between the parties.
(B)Upon the child commencing primary school:
(a)    In week one from the conclusion of school on Friday until the commencement of school on the following Tuesday;
(b)    In week two from the conclusion of school on Thursday until the commencement of school on Friday;
(c)    That the regime set out in paragraphs 2(B)(a) and (b) hereof be suspended during all school terms holidays;
(d)    For half of all school term holidays including the long summer holidays at times to be agreed and in default alternating first and second half with changeovers at 3.30 pm on the middle day and during such times the child shall be at liberty to telephone the mother at any reasonable time;
(e)    By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate such calls and the mother to facilitate them;
(f)     That all changeovers that do not take place at school take place at McDonalds or as may bee agreed between the parties; and
(g)    Any other times as agreed.
That the child shall live with the mother at all…

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 Bryant and Stapleton

Details

AGLC: Bryant and Stapleton [2008] FamCA 451
Case: [2008] FamCA 451
Decision Date: 18 June 2008

CaseChat Overview and Summary

This case involved a dispute between Bryant and Stapleton concerning the parenting arrangements for their child. The matter came before Dessau J in the Family Court of Australia.

The court was required to determine the most appropriate parenting orders for the child, considering the presumption of equal shared parental responsibility under the *Family Law Act 1975* and whether this presumption was rebutted. The court also had to assess various factors relevant to the child's best interests, including the likely effect of any changes in circumstances, the practicalities of communication and contact, and the child's maturity, sex, lifestyle, and background. The court also considered the desirability of an order that would minimise further litigation.

Dessau J found that the presumption of equal shared parental responsibility applied and was not rebutted, concluding that it was in the child's best interests for her parents to share this responsibility, given their respective contributions to her life. The court's reasoning was informed by expert evidence from Dr K, who agreed that equal shared care would be contra-indicated if certain "parent factors" were found, and expressed concern about significant changes to the child's routine. However, the court ultimately determined that the child's best interests favoured shared responsibility, noting that the child had primarily lived with her mother for most of her life, but also had a strong attachment to her father. The court also noted that the child had been subjected to significant litigation, and hoped the orders would provide closure.

The court made orders for equal shared parental responsibility, with the child to live with the father on a two-weekly cycle, with specific arrangements for weekdays, weekends, school holidays, and telephone communication. The child was to live with the mother at all other times, with specific provisions for birthdays and public holidays. The court also ordered that compliance with these parenting orders be supervised by a Family Consultant and that particulars of the obligations and consequences of contravention be set out in an attached Fact Sheet.

Orders

Orders of the court

That the parties retain equal shared parental responsibility for the child … born … May 2003 (“the child”).

That the child live with the father on a two weekly cycle as follows:

(A) Until the child commences primary school:

(a) In week one from 9.00 am Friday until the commencement of kindergarten or 9.00am on the following Tuesday save that the father shall ensure that the child attends kindergarten on Monday if it is a scheduled kindergarten day commencing on 20 June 2008;

(b) In week two from the conclusion of kindergarten or 1.30 pm on Thursday until 5.00 pm on Friday commencing 27 June 2008;

(c) For one half of the long summer school holiday in 2008/9 on an alternating week basis commencing from 3.30 pm on the last day of kindergarten, and changeover shall be at 3.30 pm each week.

(d) By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate and the mother to facilitate such calls;

(e) That all changeovers that do not take place at kindergarten take place at McDonalds or as agreed between the parties.

(B) Upon the child commencing primary school:

(a) In week one from the conclusion of school on Friday until the commencement of school on the following Tuesday;

(b) In week two from the conclusion of school on Thursday until the commencement of school on Friday;

(d) For half of all school term holidays including the long summer holidays at times to be agreed and in default alternating first and second half with changeovers at 3.30 pm on the middle day and during such times the child shall be at liberty to telephone the mother at any reasonable time;

(e) By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate such calls and the mother to facilitate them;

(f) That all changeovers that do not take place at school take place at McDonalds or as may bee agreed between the parties; and

(g) Any other times as agreed.

That the child shall live with the mother at all other times save that:

(a) If the child is living with the father on Mother’s Day she shall return to the mother from 9.00 am to 5.00 pm;

(b) If the child is living with the mother on Father’s Day she shall return to the father from 9.00 am to 5.00 pm;

(c) If the child is living with the father on her birthday she shall return to the mother for four hours if it is a weekend and for two hours after school if it is a week day;

(d) If the child is living with the mother on her birthday she shall return to the father for four hours if it is a week-end and for two hours after school if it is a week day;

(e) If the child is living with the father on the mother’s birthday she shall return to the mother for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;

(f) If the child is living with the mother on the fathers’ birthday she shall return to the father for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;

(g) Notwithstanding Order 2A(c) and Order 2B(d) hereof:

(i) the father spend time with the child from 5.00 pm on 24 December 2008 to 5.00 pm on 25 December 2008 and each alternate year thereafter, and from 5.00 pm on 25 December 2009 to 5.00 pm on 26 December 2009 and each alternate year thereafter;

(ii) the mother spend time with the child from 5.00 pm on 25 December 2008 to 5.00 pm on 26 December 2008 and each alternate year thereafter and from 5.00 pm on 24 December 2009 to 5.00 pm on 25 December 2009 and each alternate year thereafter.

That pursuant to Section 65L of The Family Law Act 1975 compliance with these parenting orders is to be supervised by a Family Consultant nominated by the Manager Child Dispute Services of the Melbourne Registry of the Court and the Family Consultant may provide a report in any future proceedings at the request of any party.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

That a copy of these reasons for judgment shall be provided to the Family Consultant referred to in paragraph 4 of these orders.

That the ICL is requested to forward a copy of these reasons for judgment to Dr K and thereafter the ICL shall be discharged.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

The parties keep each other informed of their e-mail addresses and landline telephone numbers.

10.

Save in the case of an emergency, the parties communicate with each other about the child by e-mail or SMS.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr K agreed that if those “parent factors” were found then equal shared care would be contra-indicated, and he concluded that a major change to the child’s current routine could also be of concern. (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; Except between mid-2004 and early-2006, the child has primarily lived with her mother. As just noted, Dr K ultimately expressed the concern that a significant change to the current time apportionment might be difficult for her. If things stay fairly much as they are now, even if configured slightly differently, she is likely to continue to cope very well. She loves being with and is attached to her father but her mother has always been her primary carer.(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii) the likely impact any proposed parenting order under this Part will have on that right; These considerations are not relevant in this case. (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(j)any family violence involving the child or a member of the child’s family;(k)any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or(ii) the making of the order was contested by a person; These aspects have already been considered under various other factors above.(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; The child has been fought over and litigated over for too much of her life. I hope that these orders will bring closure for her so that she can just get on with being a child. I am satisfied that it is in the child’s best interests for her parents to have equal shared parental responsibility. I am satisfied that the presumption in s 61DA of the Act applies. There was an isolated incident of violence some years before separation. It should not stop the presumption from applying. And in my view the presumption is not rebutted. I am satisfied that the child’s best interests dictate that her parents share that parental responsibility. They each have a great deal to contribute to her, and to decisions about her.