Cole and Chapman - [2009] FamCA 650

FAMILY COURT OF AUSTRALIA

COLE & CHAPMAN

[2009] FamCA 650

FAMILY LAW – CHILDREN – Whether the presumption of equal shared responsibility is rebutted – whether it is in best interests of the child that the mother be granted sole parental responsibility – whether periods of time to be spent with the father be supervised – change of surname of the child

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA(1) (2) & (4), 68

Re Andrew (1996) 20 Fam LR 538

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

Flangan & Handcock (2001) FLC 93-074

U v U [2002] FLC 93-112

Bookhurst & Bookhurst [2009] FamCA 6

Koldsjor & Addington [2009] FamCAFC 21

APPLICANT:

Mr Cole

RESPONDENT:

Ms Chapman

FILE NUMBER:

SYC

2007

DATE DELIVERED:

28 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

13 - 15 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

T Allen

SOLICITOR FOR THE APPLICANT:

Lamrocks Solicitors

COUNSEL FOR THE RESPONDENT:

E Clifton

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

Orders

That the mother have sole parental responsibility in relation to the child of the parties, N born … June 2005 (“the child”) subject to her consulting with the father in relation to all or any of the following major long-term issues as the need arises and prior to her making any decision in relation to such issue or issues:-
(a)       the child’s education (both current and future); and
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health; and
(d)       the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
And the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That by consent, the child live with the mother.
That until the child attains the age of 6 years the father may spend time with the child supervised by the paternal grandmother, …, as follows:-
(a)Each alternate Saturday from 10.00am to 5.00pm preferably to take place at the same time that the father spends time with his two daughters B and L to commence on Saturday 1 August 2009.
(b)Each alternate week on Thursday from 3.30pm to 7.30pm to commence on Thursday 6 August 2009.
(c)From 12 noon Christmas Eve until 12 noon Christmas Day during each even numbered year and from 12 noon Christmas day until 12 noon Boxing Day during each odd numbered year.
(d)In the event that the child’s birthday falls on a week day or a weekend, for no less than 4 hours at a time agreed between the parties when the child is not otherwise spending time with the father
(e)On Father’s Day, should it fall on a weekend when 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 Cole and Chapman

Details

AGLC: Cole and Chapman [2009] FamCA 650
Case: [2009] FamCA 650
Decision Date: 28 July 2009

CaseChat Overview and Summary

In the matter of *Cole and Chapman*, heard by Justice Rose, the dispute concerned parenting orders for the parties' child, N. The orders addressed issues of parental responsibility, the child's living arrangements, and the time the child would spend with each parent.

The court was required to determine the extent of parental responsibility each party would hold, specifically in relation to major long-term issues concerning the child's upbringing. Additionally, the court needed to establish a schedule for the child to spend time with the father, considering the child's age and specific health needs, and to address the father's application for a change of the child's surname.

By consent, the mother was granted sole parental responsibility for the child, with the obligation to consult the father on significant long-term issues including education, religious and cultural upbringing, health, name, and changes to living arrangements. The child was to live with the mother. The court made detailed orders regarding the father's time with the child, initially supervised by the paternal grandmother until the child turned six, transitioning to unsupervised time thereafter, with specific provisions for weekdays, weekends, holidays, and special occasions. The father's application to change the child's surname was dismissed by consent. Further orders addressed communication, prohibitions on denigration, medical emergencies, and the father's alcohol consumption and driving status.

Orders

Orders of the court

That the mother have sole parental responsibility in relation to the child of the parties, N born … June 2005 (“the child”) subject to her consulting with the father in relation to all or any of the following major long-term issues as the need arises and prior to her making any decision in relation to such issue or issues:-

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

And the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

That by consent, the child live with the mother.

That until the child attains the age of 6 years the father may spend time with the child supervised by the paternal grandmother, …, as follows:-

(a) Each alternate Saturday from 10.00am to 5.00pm preferably to take place at the same time that the father spends time with his two daughters B and L to commence on Saturday 1 August 2009.

(b) Each alternate week on Thursday from 3.30pm to 7.30pm to commence on Thursday 6 August 2009.

(c) From 12 noon Christmas Eve until 12 noon Christmas Day during each even numbered year and from 12 noon Christmas day until 12 noon Boxing Day during each odd numbered year.

(d) In the event that the child’s birthday falls on a week day or a weekend, for no less than 4 hours at a time agreed between the parties when the child is not otherwise spending time with the father

(e) On Father’s Day, should it fall on a weekend when the child is not otherwise spending time with the father from 10.00am until 5.00pm that day.

That upon the child attaining the age of 6 years the father may spend unsupervised time with the child as follows:-

During school term

(a) Each alternate Friday from the conclusion of school until Sunday 6.00pm (preferably to take place at the same time that the father spends time with his daughters B and L) and the father shall ensure that the child attends and participates in all sport and other reasonable extracurricular and social activities, the first occasion of such alternate weekend periods to commence on the first Friday in each new school term.

(b) Each alternate week on Thursday from 3.30pm to 7.30pm to commence on the Thursday which falls in the second week of the new school term.

During end-of-term school holidays

(d) For the first half of such school holiday periods, other than following the last school term, commencing at 10.00am on the first day of such periods and concluding at 5.00pm on the last day of such periods in each even numbered year and for the second half of such school holiday periods in each odd numbered year provided that the period of time which the father may spend with the child during the latter school holiday period will conclude no later than 5.00pm on the last Saturday prior to the commencement of the next school term.

(e) During the school holiday period following the last term of the school year, for each alternate week commencing with the first week in each even numbered year and the second week in each odd numbered year provided that the period of time that the father spends with the child during such school holiday period conclude no later than 5.00pm on the last Saturday preceding the commencement of the new school term and to increase to longer block periods as agreed between the parties.

That Orders numbered 3(a) and 4(a) are suspended on Mother’s Day in the event that it falls on a day when the child would be otherwise in the care of the father and the mother shall have the care of the child on Mother’s Day from 10.00am until the commencement of the next period of time that the child is due to spend with the father.

That for the purpose of changeover of the care of the child from one party to the other, unless otherwise agreed upon between the parties the mother shall deliver the child to the father at the commencement of that time.

That the father may spend such alternative or other periods with the child, whether supervised or unsupervised, as the parties may agree upon from time to time.

That by consent, the father may communicate with the child by telephone between 6.00pm and 7.00pm on each Monday and Wednesday, facilitated by the father telephoning the child by calling the mother’s mobile telephone number and, in the event of the child not being available to speak to the father, the mother shall ensure that the child returns the father’s call as soon as possible that evening.

That by consent, each party is restrained from denigrating the other party or any member of the child’s extended family or household in the presence of or hearing of the child and shall refrain from questioning the child in relation to the other parent and his or her respective household.

10.

That each party shall use his or her best endeavours to ensure that no other person conducts himself or herself in the manner referred to in Order 9.

11.

That by consent, each party shall keep the other advised immediately of any medical emergency involving the child whilst he is in his or her care and each of the parties shall use their best endeavours to attend any treating medical practitioner in relation to the child’s asthma or any other major medical ailment or condition.

12.

That by consent, each party shall keep the other informed of his or her current residential address, mobile telephone and landline numbers.

13.

That by consent and without admissions, the father shall not consume alcohol within 12 hours prior to and during the period that the child spends time with him.

14.

That by consent, the father promptly provide to the child during the time that the child spends with him, all prescribed medication and medical treatment required by the child including, but not limited to, Ventolin and Atravent and Polaramine.

15.

That by consent, the father inform the mother immediately by telephone or text message if the child is experiencing any signs of distress with his breathing and immediately contact an ambulance if the child does not respond to his medication.

16.

That by consent, the father be and is hereby restrained from driving any motor vehicle containing the child until he obtains a valid drivers licence.

17.

That by consent, the father be and is hereby restrained from physically chastising the child.

18.

That by consent, when the child is under the father’s care, the mother is at liberty to call the father’s mobile or the supervisor’s mobile telephone at times convenient to the parties.

19.

That the father’s application for an order for change of the child’s surname is dismissed.

20.

That all other outstanding applications for parenting orders are dismissed.

21.

Liberty to apply to discharge, vary or suspend any of the parenting orders made this day upon 7 days’ notice being given in writing.

22.

That all documents produced on subpoena may be returned to the person who produced the same.

23.

That the proceedings be removed from the active pending cases list.

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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