Danbridge & Gaynor - [2023] FedCFamC2F 944

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danbridge & Gaynor [2023] FedCFamC2F 944

File number(s): MLC 11339 of 2018

Judgment of: JUDGE JENKINS

Date of judgment: 11 August 2023

Catchwords: FAMILY LAW – parenting – parental responsibility – lack of communication – similar parenting styles – risk – drug use – children with special needs – split siblings – shared care arrangement

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC

Cases cited:
Grella & Jamieson [2017] FamCAFC 21

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Division: Division 2 Family Law

Number of paragraphs: 70

Date of last submission/s: 12 May 2023

Date of hearing: 11-12 May 2023

Place: Adelaide

Counsel for the Applicant: Mr Robertson

Solicitor for the Applicant: Chinka (Hep) Steel

Counsel for the Respondent: Mr Chislett

Solicitor for the Respondent: Peter Baker & Associates

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitor for the Independent Children's Lawyer: Joliman Lawyers
ORDERS

MLC 11339 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DANBRIDGE

Applicant

AND:
MR GAYNOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for the children X born in 2008 (“X”), Y (born in 2014) (“Y”) and Z (born in 2017) (“Z”) (collectively “the children”).

Live With
2.The child X live with the father.
3.The children Y and Z live with each of the parents on a week about basis, commencing with the father from the conclusion of school on the Friday following the making of these orders (or 3:30pm if a non-school day).

Spend Time
4.X spend time with the mother in accordance with her wishes from time to time.
5.Y and Z spend time with each of the parties during holidays and on special occasions as follows:

During School Term Holidays
(a)In 2023, with the father in the first half of each school term holiday commencing at the conclusion of school on the last day of term and concluding at 5:00pm on the middle Saturday of such holidays, and alternate years thereafter;
(b)In 2024, with the father in the second half of each school term holiday commencing at 5:00pm on the middle Saturday of such holidays and concluding at the commencement of school on the first day of the following term, and alternate years thereafter;

Long Summer School Holidays
(c)In 2023, with the father in the first half of the long summer school holidays commencing at the conclusion of school on the last day of the school year and concluding at 5:00pm on the middle Saturday of such holidays, and alternate years thereafter;
(d)In 2024, with the father in the second half of the long summer school holidays commencing at 5:00pm on the middle Saturday of such holidays and concluding at the commencement of school on…

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 Danbridge & Gaynor

Details

AGLC: Danbridge & Gaynor [2023] FedCFamC2F 944
Case: [2023] FedCFamC2F 944
Decision Date

CaseChat Overview and Summary

The case of Danbridge & Gaynor involves three children, X, Y, and Z, born in 2008, 2014, and 2017 respectively. The primary dispute in this matter is the allocation of parental responsibility and the living arrangements for the children following the separation of their parents, Ms Danbridge and Mr Gaynor. The matter was heard in the Federal Circuit and Family Court of Australia, Division 2, with Judge Jenkins presiding over the case. The key issues the court was required to decide included whether the parents should have equal shared parental responsibility, the potential risk posed by the father's drug use, and whether it was in the children's best interests to spend equal time between the parties.

In its reasoning, the court noted that the presumption under the Family Law Act 1975 (Cth) is that it is in the best interests of the child for the parents to have equal shared parental responsibility. The court found that there were no reasonable grounds to believe that either parent had engaged in abuse or family violence, thus the presumption stood. Despite the lack of communication between the parents, the court observed that they had similar parenting styles and could potentially work together for the benefit of the children. The court also found that the father's drug use did not currently pose an unacceptable risk to the children, though the potential for relapse remained a concern.

In determining the living arrangements for the children, the court considered the benefit to the children of having a meaningful relationship with each parent, as well as the need to protect the children from harm. The court found that the younger children, Y and Z, would benefit from spending substantial time with both parents, and that a shared care arrangement would be in their best interests. The court also considered the views of the children, their relationship with each parent, and the capacity of each parent to meet the children's needs.

Ultimately, the court made orders for the parties to have equal shared parental responsibility and for the children to live in a shared care arrangement on a week about basis. The court also made specific orders regarding the children's living arrangements, time spent with each parent, and communication between the parents. The court emphasised the importance of both parents working together to ensure the children's health, education, care, welfare, and development.

Orders