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Clanton & Lachman

Clanton & Lachman

Case [2022] FedCFamC2F 401 4 April 2022

Parental Responsibility

Time-Sharing Arrangements

Child Protection

Restraint Orders

Communication Between Parents

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clanton & Lachman [2022] FedCFamC2F 401

File number(s): SYC 6156 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 4 April 2022

Catchwords: 1 FAMILY LAW – parenting – final orders - mother seeks sole parental responsibility – father seeks equal shared parental responsibility – mother seeks an order requiring the father to undertake a mental health assessment prior to spending time with the children – pending mental health assessment, mother seeks regime of supervised daytime only weekend time graduated to daytime weekend time without supervision – father seeks immediate alternate weekend overnight time.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65DAB, 67ZC, 68B, 68P, 114

Cases cited:
A & A & The Child Representative (1998) 22 FamLR 756

AMS & AIF (1999) FLC 92-852

Bemert & Swallow [2009] FamCA 5

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Grella & Jamieson [2017] FamCAFC 21

Jacks & Samson [2008] FamCAFC 173

Johnson & Page (2007) FLC 93-344

Keskin & Keskin [2019] FamCAFC 236

Litchfield & Beck [2010] FMCAFam 969

L & T [1999] FamCA 1699

M & M (1988) FLC 91-973

Napier & Hepburn (2006) FLC 93-303

Oberlin & Infeld [2021] FamCAFC 66

Pavli & Beffa [2013] FamCA 144

Sadasivam & Seshan [2019] FamCAFC 76

Division: Division 2 Family Law

Number of paragraphs: 363

Date of last submission/s: 11 December 2020

Date of hearing: 18, 19 and 20 November 2020, and 11 December 2020

Place: Sydney

Counsel for the Applicant: Mr Hill

Solicitor for the Applicant: Inner West Solicitors Pty Ltd

Counsel for the Respondent: Mr Strik

Solicitor for the Respondent: Mark Whelan Lawyer
ORDERS

SYC 6156 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CLANTON

Applicant

AND:
MR LACHMAN

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
1.That the mother have sole parental responsibility for the children X born 2010 and Y born 2012 (“the children”) in relation to all matters relating to the children’s health and in relation to all matters relating to the children’s education.
2.That the parents have shared parental responsibility for the children in relation to all parental responsibility matters other than those relating to the children’s health and those relating to the children’s education.
3.That the children live with their mother.
4.That the children spend time with their father as follows:
(a)For four successive Saturdays from 9.00 AM until 5.00 PM, the first such occasion to be Saturday, 8 April 2022;
(b)Thereafter for four occasions on alternate weekends from 9.00 AM on Saturday until 5.00 PM on Sunday, the first such occasion to commence on Saturday, 6 May 2022;
(c)Thereafter, each alternative weekend during school term time from the end of school (or 3.00 PM if not a school day) on Friday until the start of school (or 9.00 AM if not a school day) on Monday OR until 6.00…

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.

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Details

AGLC: Clanton & Lachman [2022] FedCFamC2F 401
Case: [2022] FedCFamC2F 401
Decision Date

CaseChat Overview and Summary

The case of Clanton & Lachman before the Federal Circuit and Family Court of Australia concerned the allocation of parental responsibility and parenting arrangements for the two children of the relationship. The mother sought sole parental responsibility for the children in relation to all matters relating to their health and education, and for the father to undertake a mental health assessment prior to spending time with the children. The father sought equal shared parental responsibility for the children and for the children to spend time with him on alternate weekends. The court considered the evidence and submissions from both parties, including the Family Report, and made orders for the mother to have sole parental responsibility for the children in relation to all matters relating to their health and education, and for the parents to have shared parental responsibility for the children in relation to all other parental responsibility matters. The court also made orders for the children to live with their mother and for the father to spend time with the children on alternate weekends, with the first four occasions being supervised. The court restrained both parents from denigrating the other parent in the presence or hearing of the children, and from allowing the children to remain in the presence of or within hearing of any person denigrating the other parent. The court also made orders for the parents to keep each other informed of their contact details and for the mother to keep the father informed of any health issues affecting the children and the details of their schooling and education. The court did not make any orders in relation to the parents taking the children overseas for holiday purposes.

Orders