CROWTHER & KITCHENER - [2010] FamCA 1179

FAMILY COURT OF AUSTRALIA

CROWTHER & KITCHENER

[2010] FamCA 1179

FAMILY LAW – CHILDREN – Parenting – Equal time or significant and substantial time - Allegations violence and of father exposing children to pornography – Allegations that father’s mental health is a risk to the children
Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA and 65DAA,

MRR v GR [2010] HCA 4
Handley and Tranter [2007] FamCA 344
Korban v Korban [2008] FamCA 292
Dacia v Bennington [2008] FamCAFC 135

McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010

APPLICANT:

Mr Crowther

RESPONDENT:

Ms Kitchener

INDEPENDENT CHILDREN’S LAWYER:

Mrs Kate Mooney

FILE NUMBER:

HBC

969

2009

DATE DELIVERED:

23 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

1, 2, 3 & 26 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marcus Turnbull
with Ms Mollross

SOLICITOR FOR THE APPLICANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

Mr Michael Trezise

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell & Allport

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Kate Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kate Mooney

Orders

All previous parenting orders be dismissed in respect of the children S born … April 2005 and L born … June 2007 (“the children”).
BY CONSENT Mr Crowther (“the father”) and Ms Kitchener (“the mother”) have equal shared parental responsibility for (“the children”).
BY CONSENT neither party physically discipline the children or either of them.
BY CONSENT and without any admissions the father not approach or speak to the child V born … August 1997 (sometimes known as …) without the written consent of the mother.
Except as otherwise provided in these orders or agreed in writing between the parties, the children live with the mother.
The children shall live with the father;
a.During school term from 2011 onwards, the children live with the father each alternate week from the conclusion of school Friday until the following Wednesday at the commencement of school (if L is not at school or pre-school/day care then from 4.00pm Friday until 8.30am Wednesday).
b.Changeovers are to take place at either the B Infant School or the N Day Care, if the child or children are attending school or otherwise from the home of the mother.
c.Such alternate weekend time shall commence the first Friday after the commencement of term if the children are primarily with the mother in the last week of the proceeding school holidays or the second Friday after the commencement of school term if the children are primarily with the father in the last week of the proceeding school holidays.
d.For one half of the two mid term school holiday periods as agreed between the parties and if not agreed the children shall live with the father the first part of school holidays in odd numbered years and the second part in even numbered years. Commencing…

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 CROWTHER & KITCHENER

Details

AGLC: CROWTHER & KITCHENER [2010] FamCA 1179
Case: [2010] FamCA 1179
Decision Date: 23 December 2010

CaseChat Overview and Summary

This matter concerned parenting orders between Mr Crowther (the father) and Ms Kitchener (the mother) regarding their children, S and L. The dispute involved allegations of violence, the father exposing the children to pornography, and concerns about the father's mental health. The case was heard by Benjamin J in the Family Court of Australia.

The court was required to determine the parenting arrangements for the children, specifically addressing issues of equal time or significant and substantial time, and to make orders reflecting the best interests of the children under the Family Law Act 1975 (Cth). Key considerations included the allegations made by the parties against each other and the potential risks to the children's welfare.

By consent of the parties, the court made orders dismissing all previous parenting orders. The parties were granted equal shared parental responsibility for the children. The orders also included specific prohibitions against physical discipline, and a consent order that the father not approach or speak to another child, V, without the mother's written consent. The children were to live with the mother, except for specific periods of time with the father, which were detailed in the orders, including alternate weeks during school terms, school holidays, and specific arrangements for Christmas and other public holidays. Further orders restrained both parties from abusing or demeaning the other in the presence of the children, from being adversely affected by alcohol while the children are in their care, and from exposing the children to pornography. Both parties were also ordered to keep each other informed of significant health or educational issues impacting the children.

Orders

Orders of the court

All previous parenting orders be dismissed in respect of the children S born … April 2005 and L born … June 2007 (“the children”).

BY CONSENT Mr Crowther (“the father”) and Ms Kitchener (“the mother”) have equal shared parental responsibility for (“the children”).

BY CONSENT neither party physically discipline the children or either of them.

BY CONSENT and without any admissions the father not approach or speak to the child V born … August 1997 (sometimes known as …) without the written consent of the mother.

Except as otherwise provided in these orders or agreed in writing between the parties, the children live with the mother.

The children shall live with the father;

a. During school term from 2011 onwards, the children live with the father each alternate week from the conclusion of school Friday until the following Wednesday at the commencement of school (if L is not at school or pre-school/day care then from 4.00pm Friday until 8.30am Wednesday).

b. Changeovers are to take place at either the B Infant School or the N Day Care, if the child or children are attending school or otherwise from the home of the mother.

c. Such alternate weekend time shall commence the first Friday after the commencement of term if the children are primarily with the mother in the last week of the proceeding school holidays or the second Friday after the commencement of school term if the children are primarily with the father in the last week of the proceeding school holidays.

d. For one half of the two mid term school holiday periods as agreed between the parties and if not agreed the children shall live with the father the first part of school holidays in odd numbered years and the second part in even numbered years. Commencing at 10 am on either the first or second Saturday of the holiday and ending 10am on the second Saturday if the children are with the father the first week or 6pm Sunday if the if the children are with the father the second week second half.

e. For one half of the Easter school holiday period as agreed between the parties and if not agreed being with the father the first half in odd numbered years and with the father the second half in even numbered years.

f. The children will live with the father from 4.00pm Christmas Eve 2010 to 2.00pm Christmas Day and in each alternate year thereafter and from 2.00pm Christmas Day to 4.00pm Boxing Day in 2011 and each alternate year thereafter.

g. In respect of December 2010 and January/February 2011the children were to live with the father;

i. from 5.00pm on 26 December 2010 to 5.00pm on 1 January 2011,

ii. from 5.00pm on 8 January 2011 until 5.00pm on 15 January 2011,

iii. from 5.00pm on 22 January 2011 until 5.00pm on 29 January 2011, and

iv. from 5.00pm on 5 February 2011 until 5.00pm on 12 February 2011

thereafter following the 2011 Christmas Day arrangements the children are to spend one week with each parent on a week about basis for the remainder of the December/January/February school holiday period, such weeks to be agreed between the parties. If the parties are unable to agree then the children will be with the father from the second week after Christmas and each alternate week thereafter in 2011/2012 Christmas period and the first week after Christmas in the 2012/2013 Christmas period and each alternate year thereafter.

If the children are to be otherwise with the father on Mother’s Day the father shall return the children to the mother at 5.00pm on the Saturday before Mother’s Day and the mother shall return the children to the father’s home at 6.00pm on Mother’s Day.

If the children are with the mother on Father’s Day the mother shall return the children to the father at 5.00pm on the Saturday before Father’s Day and the father shall return the children to the mother’s home at 6.00pm on Father’s Day.

If the children are not otherwise spending part of their birthday with the other parent the parent with whom the child is living shall ensure the children spend at least two hours on their birthday (if a school day) and four hours with the other parent if a weekend or public holiday.

10.

Both parties be restrained from abusing, demeaning, belittling or harassing the other party in the presence or hearing of the children.

11.

Both parties be restrained from being adversely affected by alcohol while the children are in their care and for the purposes of this order the mother and father shall be deemed to be adversely affected by alcohol if their blood alcohol concentration is equal to or in excess of 0.05 per cent.

12.

Both parties be restrained from the use of or exposing the children to pornography during their time with the children.

13.

Neither party shall abuse, demean or belittle the other party or members of the other party’s family in the presence or hearing of the children.

14.

Each party shall keep the other informed, as soon as practicable, of any significant health or educational issue which impacts upon the children.

15.

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.

16.

This matter be removed from the list of cases requiring determination.

17.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

18.

The appointment of the Independent Children’s Lawyer be discharged after twenty eight (28) days of the date of this order.

IT IS CERTIFIED

19.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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