CALLUM & LECHIARA - [2019] FamCA 257

FAMILY COURT OF AUSTRALIA

CALLUM & LECHIARA

[2019] FamCA 257

FAMILY LAW – CHILDREN – Parenting – Allegations of family violence – Mental Health – Where the mother seeks orders for supervised time – Where the evidence of violence cannot be accepted to the requisite standard – Order made for equal share parental responsibility – Order made for the child to live with the mother and spend unsupervised time with the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Amador & Amador (2009) 43 Fam LR 268
Gianoutsos v Glykis [2006] NSWCCA 137
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Callum

RESPONDENT:

Mr Lechiara

INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers

FILE NUMBER:

SYC

3130

2017

DATE DELIVERED:

24 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

21, 22, 23, 24, 25, 29 and 31 January 2019 and 1 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies SC

SOLICITOR FOR THE APPLICANT:

Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Rosic

SOLICITOR FOR THE RESPONDENT:

Rowlandson & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reheby

INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers

Orders

All existing orders in relation to the child B, born … 2013 ("B") are discharged.
2.1 The parties have equal shared parental responsibility for B, provided that they consult in writing as to any change in the child's school or medical treatment as soon as possible and no less than 42 days prior to any such proposed change and if they are unable to agree, then they shall attend a shuttle telephone mediation with a qualified Family Dispute Resolution Practitioner.
2.2Each of the parties has sole responsibility for day-to-day decisions in relation to B's welfare when she is in his or her care pursuant to these orders.
B lives with the mother.
B spend time with the father as follows:
4.1commencing on the first weekend after the making of these Orders, on three consecutive occasions each alternate Saturday from 8.00 am to 6.00 pm and thereafter
4.2on three consecutive occasions each alternate week from the conclusion of school on Friday to 6.00 pm on Saturday and thereafter
4.3during school terms, each alternate weekend from the conclusion of school Friday to 6.00 pm Sunday for a period of three months and thereafter
4.4each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday including during school holidays
until 2020.
4.5commencing in 2020 for one half of all short school holiday periods, being the first week in odd-numbered years and the second week in

even-numbered years
4.6for a period of two weeks commencing at 2.00 pm on Christmas Day in 2019 and each alternate year thereafter
4.7for a period of two weeks commencing at 2.00 pm on 8 January 2021 and each alternate year thereafter
4.8on Father's Day in each year from 6.00 pm on the day preceding Father's Day until the conclusion of the…

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 CALLUM & LECHIARA

Details

AGLC: CALLUM & LECHIARA [2019] FamCA 257
Case: [2019] FamCA 257
Decision Date: 24 April 2019

CaseChat Overview and Summary

This matter concerned Callum and Lechiara, who were parties to proceedings regarding their child, B. The dispute centred on arrangements for B's living arrangements, time with each parent, and parental responsibility. Stevenson J presided over the proceedings and made orders concerning these matters.

The court was required to determine the appropriate orders for parental responsibility, including how decisions regarding B's schooling and medical treatment would be made. Further, the court needed to establish a living arrangement for B and set out a detailed schedule for B's time with each parent, including specific provisions for weekends, school holidays, and significant dates. The court also had to consider conditions relating to the presence of a paternal grandmother during the father's time with B, and restrictions concerning a third party, Mr F, in relation to B's overnight stays with the father.

Stevenson J ordered that existing orders concerning B be discharged. The parties were granted equal shared parental responsibility, with a requirement to consult in writing regarding changes to B's school or medical treatment at least 42 days in advance, and to attend mediation if agreement could not be reached. Each parent was given sole responsibility for day-to-day decisions when B was in their care. B was ordered to live with the mother, and a comprehensive schedule for B's time with the father was established, which evolved over time. Specific conditions were imposed regarding the paternal grandmother's presence during the father's time and ensuring Mr F did not sleep at the father's residence when B had overnight stays. Further orders addressed communication protocols between the parents, information sharing regarding B's health and education, and mutual restraining orders preventing proximity and non-essential contact. The court also mandated continued engagement with B's psychologist.

Orders

Orders of the court

All existing orders in relation to the child B, born … 2013 ("B") are discharged.

2.1 The parties have equal shared parental responsibility for B, provided that they consult in writing as to any change in the child's school or medical treatment as soon as possible and no less than 42 days prior to any such proposed change and if they are unable to agree, then they shall attend a shuttle telephone mediation with a qualified Family Dispute Resolution Practitioner.

2.2 Each of the parties has sole responsibility for day-to-day decisions in relation to B's welfare when she is in his or her care pursuant to these orders.

B lives with the mother.

B spend time with the father as follows:

4.1 commencing on the first weekend after the making of these Orders, on three consecutive occasions each alternate Saturday from 8.00 am to 6.00 pm and thereafter

4.2 on three consecutive occasions each alternate week from the conclusion of school on Friday to 6.00 pm on Saturday and thereafter

4.3 during school terms, each alternate weekend from the conclusion of school Friday to 6.00 pm Sunday for a period of three months and thereafter

4.4 each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday including during school holidays

until 2020.

4.5 commencing in 2020 for one half of all short school holiday periods, being the first week in odd-numbered years and the second week in

even-numbered years

4.6 for a period of two weeks commencing at 2.00 pm on Christmas Day in 2019 and each alternate year thereafter

4.7 for a period of two weeks commencing at 2.00 pm on 8 January 2021 and each alternate year thereafter

4.8 on Father's Day in each year from 6.00 pm on the day preceding Father's Day until the conclusion of the time with the father pursuant to these Orders

4.9 from 2.00 pm on Christmas Even until 2.00 pm on Christmas Day in 2019 and each alternate year thereafter

For the purposes of Orders 4.1, 4.2 and 4.3 above the paternal grandmother will be present during B's time with the father and overnight time pursuant to Order 4.2 will occur in the paternal grandmother's home.

6.1 The father will be present with B at all times when she is in the presence of Mr F

6.2 The father will ensure that Mr F does not sleep at any premises where B spends overnight time with the father pursuant to these Orders.

If Mother's Day falls on a weekend that the child is in the father's care then changeover will occur at 6.00 pm on the day preceding Mother's Day.

8.1 School holiday time will commence from the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day that the child is required to attend school, with changeover to occur on the middle day at 6.00 pm.

8.2 If there is an even number of days in the school holiday period then B will remain with the parent who has her care for the additional night.

Changeovers which do not take place at B's school will occur by way of the father or his nominee collecting her from the mother or her nominee at McDonalds Restaurant at Suburb D at the commencement of time pursuant to these Orders and by way of the mother or her nominee collecting her from the father or his nominee at McDonalds Restaurant at Suburb BB at the commencement of time pursuant to these Orders.

10.

10.1 Each party is at liberty to speak with B by telephone each Wednesday between 6.00 pm and 6.30 pm when she is in the other parent's care by way of a mobile telephone number to be provided by the parties to each other via email within 48 hours of the making of these Orders.

10.2 The party with care of B will facilitate that time by ensuring that she has access to and answers the phone in the period between 6.00 pm and 6.30 pm.

11.

Each party communicate to the other urgent matters in relation to B by way of text message and non-urgent matters by email.

12.

Each party ensure that the other is kept informed of any serious medical illnesses or hospitalisation of B while she is in his or her care.

13.

Both parties do all things necessary to ensure that any school which B attends is authorised to provide both parents with all information and material usually available to parents.

14.

Within seven days of the date of these Orders each party advise the other and keep the other advised of his and her current address.

15.

Each party is restrained from coming within 200 metres of the other's residence or place of employment without their written consent, or otherwise contacting the other parent except in relation to communication about B pursuant to these Orders.

16.

Each party is restrained from physically disciplining the child or permitting any third party to do so.

17.

The Independent Children's Lawyer will provide a copy of these Orders to B's current psychologist.

18.

The parties ensure that B continues to engage with her current psychologist for a period of one year as and when recommended by the psychologist and that both parents are at liberty to be involved in the child's therapy at the discretion of the psychologist.

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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