DARCY & SAMPSON - [2009] FMCAfam 1300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARCY & SAMPSON

[2009] FMCAfam 1300

FAMILY LAW – Child – parenting arrangements for child aged 3 years of age – parties separated when child was an infant – parties agree presumption of equal shared parental responsibility applies – whether division of time child spends with each parent should be expressed as live with/live with order or spend time with order – best interests.

FAMILY LAW – Property – assessment of contributions – short marriage – parties’ financial position has deteriorated during marriage – how debts should be distributed between parties – assessment of section 75(2) factors – just and equitable.

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA, 65DAC; 65DAE; 75(2); 79(2); & 79(4)

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
C & C (2005) FLC 93-220
Pierce & Pierce (1999) FLC92-844
Waters & Jurek (1995) FLC 92-635
Russell v Russell (1999) FamCA 187
D & D [2003] FamCA 473
Silas & Barry [2009] FMCAfam 448
Aleksovski (1996) FLC 92-705
Ferraro & Ferraro (1992) 16 FamLR 1
Bright v Bright (1995) FLC 92-570
Goode & Goode (2006) FLC 93-286

Applicant:

MR DARCY

Respondent:

MS SAMPSON

File Number:

ADC 576 of 2008

Judgment of:

Brown FM

Hearing date:

8 September 2009

Date of Last Submission:

8 September 2009

Delivered at:

Adelaide

Delivered on:

11 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Howe Martin & Associates

Counsel for the Respondent:

Ms Croydon

Solicitors for the Respondent:

Croydons

The following notations are made at the direction and with the consent of each of the parties:

It is noted that the parents of [X] agree that her needs, requirements, interest and relationships will change from time to time as she grows and develops.

It is further noted that the parties agree and acknowledge that they intend to ensure that [X] has a substantial and ongoing relationship with both of her parents and other family members.

It is further noted that the parties agree that [X] will be educated at a school under the auspices of the Roman Catholic Department of Education and that in the event of disagreement between the parties they will endeavour to attend mediation to discuss such disagreements.

ORDERS

IT IS ORDERED BY CONSENT:

The parties have equal shared parental responsibility for the child [X] born [in] 2006 (hereinafter referred to as “the child”).

IT IS FURTHER ORDERED:

The child will live with each of her parents as follows:
A.With the father:
(a)Until the child attains the age of four years (1 November 2010):
(i)From 10:00am Saturday until 8:00am the following Monday on alternate weekends;
(ii)Each week from 2:00pm until 6:00pm on Wednesday.
(b)Between the period when the child attains four years of age and when she commences her primary school education:
(i)From 10:00am Saturday until 6:00pm the following Monday on alternate…

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 DARCY & SAMPSON

Details

AGLC: DARCY & SAMPSON [2009] FMCAfam 1300
Case: [2009] FMCAfam 1300
Decision Date: 11 December 2009

CaseChat Overview and Summary

Darcy and Sampson were married for a brief period and have a young child born in 2006. Following their separation, they came before the Family Court to determine parenting arrangements and the distribution of property. The primary concern in the case was the determination of the most appropriate method to articulate the parenting arrangements for the child, specifically whether they should be expressed as a "live with/live with" order or a "spend time with" order. Additionally, the court had to decide on the division of the parties' debts and other financial matters.

The court considered the presumption of equal shared parental responsibility and the best interests of the child in deciding the parenting arrangements. The court held that a "spend time with" order was more appropriate in this case, given the detailed schedule that was agreed upon by the parties. The court also assessed the contributions made by each party during the marriage, the financial position of the parties, and the relevant factors under section 75(2) of the Family Law Act to determine the distribution of the debts.

The court ordered that the child would have an extensive and detailed schedule of time to be spent with each parent, reflecting the parties' agreement. The court also ordered that the debts be divided in a manner deemed just and equitable, considering the factors under section 75(2) of the Family Law Act.

The final orders of the court included the parties having equal shared parental responsibility for the child, the detailed schedule for the child to spend time with each parent, and the division of the debts in a manner deemed just and equitable.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The parties have equal shared parental responsibility for the child [X] born [in] 2006 (hereinafter referred to as “the child”).

IT IS FURTHER ORDERED:

The child will live with each of her parents as follows:

A. With the father:

(a) Until the child attains the age of four years (1 November 2010):

(i) From 10:00am Saturday until 8:00am the following Monday on alternate weekends;

(ii) Each week from 2:00pm until 6:00pm on Wednesday.

(b) Between the period when the child attains four years of age and when she commences her primary school education:

(i) From 10:00am Saturday until 6:00pm the following Monday on alternate weekends;

(ii) Each week from 2:00pm on Wednesday until 9:00am the following Thursday.

(i) From after school on Friday until the commencement of school the following Monday on alternate weekends;

(ii) Each week during school terms from after school on Wednesday until the commencement of school the following Thursday.

IT IS FURTHER ORDERED BY CONSENT

(d) In addition the child live with the father for the following periods:

(i) On [X]’s birthday for a period of not less than four (4) hours the hours to be agreed between the parties, and failing agreement from 10:00am until 2:00pm;

(ii) On Father’s Day (if [X] is not already with the father) from 10:00am until 6:00pm;

(iii) On the father’s birthday (if [X] is not already with the father) for a period of not less than four (4) hours as agreed between the parties, and failing agreement from 10:00am until 2:00pm;

(iv) On days of celebration of the father or member of his family as may be agreed between the parties with this arrangement to continue after [X] commences her junior primary school education;

(v) At Easter 2010 and each alternate year thereafter from 6:00pm Maundy Thursday to 6:00pm Easter Saturday with this arrangement to continue after [X] commences her junior primary school education;

(vi) At Easter 2011 and each alternate year thereafter from 6:00pm Easter Saturday to 6:00pm Easter Monday with this arrangement to continue after [X] commences her junior primary school education;

(vii) From 3:00pm on 25 December 2009 until 5:00pm on 26 December 2009 and each alternate year thereafter with this arrangement to continue after [X] commences her junior primary school education;

(viii) From 2:00pm on 24 December 2010 until 3:00pm on 25 December 2010 and each alternate year thereafter with this arrangement to continue after [X] commences her junior primary school education;

(ix) On [X]’s birthday for a period of not less than four (4) hours on the day immediately preceding or proceeding [X]’s birthday (if [X] is not otherwise with her father), with the father to nominate which day not less than seven (7) days prior to [X]’s birthday, and in the event of the husband not nominating a day, then on the day preceding [X]’s birthday.

(x) For the period of [X]’s first year at school, during each short term school holiday period for periods of five (5) consecutive days and for three (3) such periods of five (5) consecutive days during the Christmas school holidays occurring during the first year of [X]’s formal education the periods during the Christmas school holidays to be agreed and failing agreement to be during the first, third and fifth weeks of the school holiday period and failing agreement from 10:00am Monday to 6:00pm Thursday in those weeks.

(xi) Upon [X] having completed a year of her formal education, then for one half of each holiday period as agreed between the parties and failing agreement, during the short term school holidays from 6:00pm on the last day of school to 6:00pm on the second Saturday of the school holiday or such other day as shall be the mid-day of the school holiday period and during the Christmas school holidays on an alternating weekly basis as may be agreed between the parties with changeover being at 6:00pm each Friday and with the father having the first week of the school holiday period each year, unless otherwise agreed between the parties.

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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