FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDDY & BEAUMONT | [2017] FCCA 215 |
| Catchwords: FAMILY LAW – Parenting – children living with father since 2011 – siblings separated since August 2016 when oldest child commenced living with mother – allegation that step-mother choked one of the children – allegation that step-mother is physically abusive – burden of proof and findings of fact – whether unacceptable risk of harm to children if no findings of fact could be made – best interests of children – children to live with father – children to spend time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA |
| Cases cited: A & A (1998) FLC 92-800 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 Star & Duggan [2009] FamCAFC 115 |
| Applicant: | MS EDDY |
| Respondent: | MR BEAUMONT |
| File Number: | PAC 1709 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 17, 18, 19 October 2016 |
| Date of Last Submission: | 3 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Barber & Massey |
| Counsel for the Respondent: | Mr Cohen |
| Solicitors for the Respondent: | Gonzalez & Co |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | Rowley & Associates |
ORDERS
That the father have sole parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
That the children live with the father.
That the children spend time with the mother as follows:
(a)During the school term and commencing on 16 February 2017, from after school on Thursday to before school on Monday each alternate week; and
(b)During each gazetted school holiday period in years ending with an even number for the first half of each such period from the last day of school to midday on the middle day of the school holiday period; and in years ending with an odd number for the second half of each such period from midday on the middle day of the school holiday period to the commencement of school in the new school term.
That notwithstanding any other order, the children live with the father each year on Christmas Day from 10am to 6pm and on each of the children’s birthdays from 3pm to 8pm.
That for the purposes of orders (3) and (4)…
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CaseChat Overview and Summary
The court was required to determine the primary caregiver for the children, the children's residence, and the nature and extent of the time the children would spend with the non-resident parent. Additionally, the court considered the need for therapeutic intervention for the parents and imposed specific behavioural restraints on each party in relation to the children.
Judge Obradovic ordered that the father have sole parental responsibility for the children and that the children live with him. The mother was granted specific time with the children during school terms and school holidays, with detailed provisions for changeovers. The court also made orders for the children to spend time with the mother on Christmas Day and their birthdays. Further orders mandated the parties' participation in post-separation intervention programs, prohibited physical discipline and denigration of the other parent, and required the father to facilitate the mother's access to school information and to consult with her on major decisions regarding the children's education and health.
Orders
Orders of the court
1.
That the father have sole parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
2.
That the children live with the father.
3.
That the children spend time with the mother as follows:
(a) During the school term and commencing on 16 February 2017, from after school on Thursday to before school on Monday each alternate week; and
(b) During each gazetted school holiday period in years ending with an even number for the first half of each such period from the last day of school to midday on the middle day of the school holiday period; and in years ending with an odd number for the second half of each such period from midday on the middle day of the school holiday period to the commencement of school in the new school term.
4.
That notwithstanding any other order, the children live with the father each year on Christmas Day from 10am to 6pm and on each of the children’s birthdays from 3pm to 8pm.
5.
That for the purposes of orders (3) and (4) above, if changeover does not occur at the children’s respective schools, then the mother shall pick the children up from the father’s residence at the commencement of the children’s time with the mother, and the father shall pick the children up from the mother’s residence at the conclusion of the children’s time with the mother.
6.
That pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Counselling and Mediation Unifam (omitted) on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Post Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:
(a) Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such program.
7.
That pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Care Unifam (omitted) on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Keeping Contact program offered by that organisation and subject to the assessment of suitability each party shall then:
(a) Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such program.
8.
That each of the parties is restrained from using physical discipline on the children or permitting or allowing any third party to do so.
9.
That each of the parties is restrained from denigrating the other or any member of the other party’s household or permitting or allowing any third party do so within the presence or hearing of the children.
10.
That the father authorise any school which the children may attend to provide information to the mother about the children’s progress at school, including copies of school reports, photographs, newsletters and other general information about the children’s attendance at school.
11.
That the father use his best endeavours to consult with the mother before making any major long term decisions in relation to the children’s education or health.
12.
That all outstanding issues are otherwise removed from the list of cases awaiting finalisation.
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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