CARSON & LEARY - [2019] FCCA 2660

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARSON & LEARY

[2019] FCCA 2660

Catchwords:
FAMILY LAW – Parenting – parental responsibility – time with father – whether father poses a risk to the child – best interests – change of name.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Chapman & Palmer (1978) FLC 90-150
Goode v Goode (2007) 36 FamLR 422
Jepson & Fleming [2018] FCCA 400
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Mayes & Denning [2017] FCCA 1754
MRR & GR [2010] HCA 4
Salah& Salah [2016] FamCAFC 100
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1

Applicant:

MR CARSON

Respondent:

MS LEARY

File Number:

PAC 592 of 2017

Judgment of:

Judge Obradovic

Hearing dates:

13, 14 and 15 March 2019

Date of Last Submission:

15 March 2019

Delivered at:

Parramatta

Delivered on:

20 September 2019

REPRESENTATION

Appearing for the Applicant:

In person

Counsel for the Respondent:

Ms Cotter-Moroz

Solicitors for the Respondent:

Edwards Family Lawyers

Counsel for the Independent child's Lawyer:

Mr Lee

Solicitors for the Independent child's Lawyer:

Hills Legal Group

ORDERS

All prior parenting orders with respect to the child X born … 2014 are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father:
(a)From the date of these orders up to and including 22 January 2020, each Wednesday from 9am to 5pm;
(b)Commencing on 27 September 2019 and each alternate week thereafter, from 9am on Friday to 10am on Saturday;
(c)Commencing on 22 November 2019 and each alternate week thereafter, from 9am on Friday to 6pm on Saturday;
(d)Commencing on 20 December 2019 and each alternate week thereafter from 9am on Friday to 10am on Sunday;
(e)Commencing on 17 January 2020 and each alternate week thereafter during the school term from 3pm or after school on Friday to 9am or before school on Monday;
(f)Commencing on 5 February 2020 and each Wednesday thereafter during the school term from 3pm or after school to 7pm. (The Court notes that the child will not be spending time with the father on Wednesday 29 January 2020);
(g)During the school holidays at the conclusion of the first school term in 2020 for a block period of four days as agreed between the parents, but failing agreement from 9am on the first Monday of the school holidays to 9am on the first Friday of the school holidays;
(h)During the school holidays at the conclusion of the second school term in 2020 for a block period of six days as agreed between the parents in writing, but failing agreement from 9am on the first Monday of the school holidays to 9am on the second Sunday of the school holidays;
(i)For half the school holiday period at the conclusion of the third school term in 2020 as agreed between the parents in writing but failing agreement for 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 CARSON & LEARY

Details

AGLC: CARSON & LEARY [2019] FCCA 2660
Case: [2019] FCCA 2660
Decision Date: 20 September 2019

CaseChat Overview and Summary

In CARSON & LEARY, heard before Judge Obradovic, the dispute concerned parenting arrangements for the child X, born in 2014, and a related application to change the child's name. The proceedings involved the child's parents, Mr. Carson and Ms. Leary.

The court was required to determine the appropriate parenting orders, specifically addressing the allocation of parental responsibility, the child's living arrangements, and the time the child would spend with each parent. A key consideration was whether the father posed a risk to the child, and the overarching principle guiding these decisions was the best interests of the child. The court also had to determine the application for the change of the child's name.

The court discharged all prior parenting orders and established equal shared parental responsibility. The child was ordered to live with the mother, with detailed provisions outlining the time the child would spend with the father, commencing immediately and extending through various stages and school holidays. The court also made specific orders regarding communication between the father and child, parental conduct, and the exchange of information concerning the child's health and education. Crucially, the court imposed an injunction restraining the father from having certain third parties reside in his home during the child's time with him until the child reached 12 years of age. The court also ordered the parents to attend professional communication and co-parenting sessions.

In relation to the name change, the court ordered that the child be henceforth known as X and authorised the father to apply to the Registrar of Births, Deaths and Marriages to register the child's name accordingly, directing the father to serve a sealed copy of the order on the Registrar. All outstanding issues were removed from the list of cases awaiting finalisation.

Orders

Orders of the court

All prior parenting orders with respect to the child X born … 2014 are discharged.

The parents shall have equal shared parental responsibility for the child.

The child shall live with the mother.

The child shall spend time with the father:

(a) From the date of these orders up to and including 22 January 2020, each Wednesday from 9am to 5pm;

(b) Commencing on 27 September 2019 and each alternate week thereafter, from 9am on Friday to 10am on Saturday;

(d) Commencing on 20 December 2019 and each alternate week thereafter from 9am on Friday to 10am on Sunday;

(e) Commencing on 17 January 2020 and each alternate week thereafter during the school term from 3pm or after school on Friday to 9am or before school on Monday;

(f) Commencing on 5 February 2020 and each Wednesday thereafter during the school term from 3pm or after school to 7pm. (The Court notes that the child will not be spending time with the father on Wednesday 29 January 2020);

(g) During the school holidays at the conclusion of the first school term in 2020 for a block period of four days as agreed between the parents, but failing agreement from 9am on the first Monday of the school holidays to 9am on the first Friday of the school holidays;

(h) During the school holidays at the conclusion of the second school term in 2020 for a block period of six days as agreed between the parents in writing, but failing agreement from 9am on the first Monday of the school holidays to 9am on the second Sunday of the school holidays;

(i) For half the school holiday period at the conclusion of the third school term in 2020 as agreed between the parents in writing but failing agreement for the first half of that school holiday period;

(j) For a block period of 12 days during the school holidays at the conclusion of the 2020 school year as agreed between the parents in writing but failing agreement from 9am on 2 January 2021 to 9am on 14 January 2021;

(k) Commencing in the 2021 school year and each odd numbered year thereafter, for the second half of each school holiday period;

(l) Commencing in the 2022 school year and each even numbered year thereafter, for the first half of each school holiday period; and

(m) At all other times as agreed to by the parents in writing.

Notwithstanding any other order, the child shall spend time with the mother on Mother’s Day from 9am to 6pm and the child shall spend time with the father on Father’s Day from 9am to 6pm.

Notwithstanding any other order, the child shall spend time with the father on the child’s birthday from 3pm to 6pm unless the child is already spending time with the father on that day pursuant to these orders.

Notwithstanding any other order, the child shall spend time with the mother on the child’s birthday from 3pm to 6pm unless the child is already living with the mother on that day pursuant to these orders.

The father shall collect the child from either the mother’s residence or the child’s school (including pre-school) at the commencement of the child’s time with the father and the mother shall collect the child from either the father’s residence or the child’s school (including pre-school) at the conclusion of the child’s time with the father.

Until the child reaches 12 years of age, the father is restrained by injunction from having any third party who is not a family member of the father or is otherwise not known to the child reside in the father’s home during periods of time the child is spending time with the father.

10.

The parents shall together attend upon an appropriately qualified professional for the purpose of working on their communication and co-parenting. The parents shall equally be liable for the costs of such professional services.

11.

The father may communicate with the child by telephone each Tuesday and Thursday from 6pm to 6.30pm.

12.

Neither parent shall denigrate or permit any other person to denigrate the other parent or any other member of the parent’s household in the presence or hearing of the child.

13.

Each parent shall ensure that the other is advised properly of any medical emergency or significant illness relating to the child.

14.

Each of the parents shall:

(a) Be entitled to attend all events involving the child including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events including concerts, assemblies, sport days, parent teacher interviews, canteen duties and social functions;

(b) Notify the other parent of the name, address and telephone number of any medical or health practitioners that the child attends upon from time to time, including but not limited to General Practitioners, specialists, mental health practitioners, allied health professionals, including physiotherapists, speech therapists, occupational therapists and any other medical professionals, and shall authorise that medical or health practitioner in writing to release to the other party particulars of the child’s health or treatment at any time requested by the other parent;

(c) Notify the other parent as soon as possible and in any event within four hours of any serious injury or illness suffered by the child whilst in the care of that party;

(d) Notify the other parent within seven days of changing their address, email address, landline or mobile telephone number, of such change;

(e) Notify the other parent and keep the other parent notified of a telephone number where they may be contacted in the event of an emergency;

(f) Give all necessary consents to facilitate and be at liberty to contact the child’s school to obtain copies of any information relating to the child including, but not limited to, school reports, school circulars, school notices, school invitations, school correspondence, school photographs and other documents concerning the education and the school activities of the child, and any other information in relation to the child’s academic progress and any involvement he may have with the school counsellor;

(g) Be permitted to attend all school functions (including parent-teacher interviews), all sporting events and any other extra-curricular activities that the child participates in which parents are usually permitted to attend, regardless of whom the child is spending time with when those events occur;

(h) Encourage, supervise, assist with, and facilitate homework, home study and all necessary extra-curricular practice by the child during periods of contact; and

(i) Provide the other parents with an address and telephone number of the place where the child will be staying during periods of holiday contact.

15.

The child X (male) born … 2014 shall be henceforth known as X.

16.

The father Mr Carson is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (male) born … 2014 be now registered as X.

17.

Pursuant s.28 (5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the child’s name in the form specified in Order 15 herein.

18.

The Court directs that the father forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

19.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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