Dennis and Dennis and Anor - [2017] FamCA 1066

FAMILY COURT OF AUSTRALIA

DENNIS & DENNIS AND ANOR

[2017] FamCA 1066

FAMILY LAW – CHILDREN – INTERIM DETERMINATION – Where father deceased – Where children live with paternal grandmother – Where mother having supervised time with youngest child – Where mother seeks that her time be increased and no longer supervised – Where issue of lifting of supervision resolved by agreement – Where issue for determination is mother’s time with child pending further order or trial – Where consideration of applicable principles.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode: [2006] FamCA 1346
Marvel v Marvel[2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

MRR v GRR [2010] HCA 4

APPLICANT:

Ms Dennis

FIRST RESPONDENT:

Mr Dennis

SECOND RESPONDENT:

Ms B Dennis

INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid

FILE NUMBER:

PAC

4089

2014

DATE DELIVERED:

20 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

8 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Caldwell Martin Cox

SOLICITOR FOR THE FIRST RESPONDENT:

Marsdens Law Group

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Knight of Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid of Mark Macdiarmid Family Law Specialist

Orders

That all previous parenting orders for the child C born … 2010 (‘the child’) to spend supervised time with the mother be discharged.
That pending further order the child spend time with the mother as agreed between the mother and paternal grandmother in writing such writing to include SMS or Email communication and in default of agreement as follows:
a)Wednesday, 20 December 2017 from 3.00 pm until 7.00 pm;
b)Saturday, 23 December 2017 from 10.00 am until 5.00 pm;
c)Monday, 25 December 2017 from 2.00 pm until 7.00 pm;
(d)Wednesday, 27 December 2017 from 10.00 am until 5.00 pm;
(e)10.00 am Saturday, 30 December 2017 to 5.00 pm Sunday, 31 December 2017;
(f)Wednesday, 3 January 2018 from 10.00 am until 5.00 pm;
(g)10.00 am Saturday, 6 January 2018 to 5.00 pm Sunday, 7 January 2018;
(h)Wednesday, 24 January 2018 from 3.00 pm until 7.00 pm;
(i)subsequent to the resumption of school term in 2018 the child spend time with the mother:
(i)during each school term on each alternate weekend from after school (or 3.00 pm if a non-school day) Friday until the commencement of school the following Monday (or 9.00 am if a non-school day) commencing on the first weekend after the resumption of school term;
(ii)for the first half of each school holiday period at the conclusion of terms 1, 2 and 3 from the last day of required school attendance until 5.00 pm on the second Sunday of such school holiday period.
It is noted for the sake of clarity that Orders (8) to (12) inclusive made on 8…

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

Case: [2017] FamCA 1066
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the matter of Dennis and Dennis and Anor, Foster J considered parenting orders concerning a child born in 2010. The dispute involved the terms of the child's time spent with the mother, with previous orders mandating supervised time.

The court was required to determine whether to discharge the existing supervised parenting orders and, if so, to establish new arrangements for the child to spend time with the mother. This involved considering the specific periods and frequency of contact, particularly during the upcoming holiday season and into the subsequent school term.

Foster J discharged all previous orders for supervised time. The court then made new orders, providing for the child to spend time with the mother as agreed in writing between the mother and the paternal grandmother. In default of such agreement, specific dates and times for contact during the December 2017 and January 2018 period were set out. Furthermore, the orders stipulated a pattern of alternate weekend contact during school terms and a specific duration of contact during the first half of each school holiday period from term 1 onwards.

Orders

Orders of the court

That all previous parenting orders for the child C born … 2010 (‘the child’) to spend supervised time with the mother be discharged.

That pending further order the child spend time with the mother as agreed between the mother and paternal grandmother in writing such writing to include SMS or Email communication and in default of agreement as follows:

a) Wednesday, 20 December 2017 from 3.00 pm until 7.00 pm;

b) Saturday, 23 December 2017 from 10.00 am until 5.00 pm;

c) Monday, 25 December 2017 from 2.00 pm until 7.00 pm;

(d) Wednesday, 27 December 2017 from 10.00 am until 5.00 pm;

(e) 10.00 am Saturday, 30 December 2017 to 5.00 pm Sunday, 31 December 2017;

(f) Wednesday, 3 January 2018 from 10.00 am until 5.00 pm;

(g) 10.00 am Saturday, 6 January 2018 to 5.00 pm Sunday, 7 January 2018;

(h) Wednesday, 24 January 2018 from 3.00 pm until 7.00 pm;

(i) subsequent to the resumption of school term in 2018 the child spend time with the mother:

(i) during each school term on each alternate weekend from after school (or 3.00 pm if a non-school day) Friday until the commencement of school the following Monday (or 9.00 am if a non-school day) commencing on the first weekend after the resumption of school term;

(ii) for the first half of each school holiday period at the conclusion of terms 1, 2 and 3 from the last day of required school attendance until 5.00 pm on the second Sunday of such school holiday period.

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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