Firentes and Teung - [2013] FamCA 974

FAMILY COURT OF AUSTRALIA

FIRENTES & TEUNG

[2013] FamCA 974

FAMILY LAW – INTERIM PARENTING – Where the child lives with the father – What time the child should spend with the mother on an interim basis – Allegations of family violence – Allegations of maltreatment of the child – Whether such allegations cannot be determined on an interim basis and await the testing of the evidence at final hearing

Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
Goode and Goode (2006) FLC 93-286
Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Mr Firentes

RESPONDENT:

Ms Teung

INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

FILE NUMBER:

PAC

3617

2010

DATE DELIVERED:

13 December 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Mr Taylor of Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan of Legal Aid NSW Parramatta

Orders

That the interim Orders made on 25 February 2013 be discharged.
That the father and mother have equal shared parental responsibility for the child B born on … 2008.
That the child shall live with the father when the child is not otherwise living with the mother as provided for hereunder.
That the child shall live with the mother as follows:
a)During school terms in a two (2) week cycle:
i)In the first week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the first Wednesday after the resumption of school Term 1, 2014 and from after school Friday until 4.00 pm Saturday commencing on the first Saturday after the resumption of school Term 1 2014; and
ii)In the second week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the second Tuesday after the commencement of school term in Term 1, 2014 and from after-school Friday until 4.00 pm Sunday commencing on the second Friday after the resumption of school in Term 1, 2014.
b)For one half of the Term 1, 2 and 3 school holiday periods, and for this purpose, such period will commence at 10.00 am on the first day of such holiday periods.
c)Otherwise:
(i)From 5.00 pm on Friday until 5.00 pm on Saturday on alternate weekends commencing 20 December 2013;
(ii)From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;
(iii)From 9.00 am on 29 December 2013 until 9.00 am on 2 January 2014; and
(iv)From 9.00 am on 18 January 2014 until 9.00 am on 23 January 2014.
d)At such other times as the parties may agree in writing.
That the father and mother, within one (1) month from the date of these Orders, do all things necessary so as to in enrol in the Keeping Contact Program provided…

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 Firentes and Teung

Details

AGLC: Firentes and Teung [2013] FamCA 974
Case: [2013] FamCA 974
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of *Firentes and Teung* involved a dispute between a father and mother concerning the parenting arrangements for their child, B. The matter was heard by Foster J.

The court was required to determine the parenting orders that would be in the best interests of the child, B. This included establishing the nature of parental responsibility, the child's living arrangements with each parent, and provisions for holidays and significant events. The court also considered the need for the parents to attend a counselling program and the preparation of a Family Report to inform future decisions.

Foster J ordered that the interim orders be discharged and that the parents have equal shared parental responsibility for B. The court set out a detailed schedule for when the child would live with each parent, including specific arrangements during school terms and holidays. The orders also mandated that both parents attend a "Keeping Contact Program" and provide proof of completion. Furthermore, the court directed that a Family Report be prepared by a family consultant, with specific areas of focus including the child's relationship with both parents, protection from harm, the impact of any changes in circumstances, and the parents' capacity to provide for the child's needs. The matter was adjourned for further directions following the release of the Family Report.

Orders

Orders of the court

That the interim Orders made on 25 February 2013 be discharged.

That the father and mother have equal shared parental responsibility for the child B born on … 2008.

That the child shall live with the father when the child is not otherwise living with the mother as provided for hereunder.

That the child shall live with the mother as follows:

a) During school terms in a two (2) week cycle:

i) In the first week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the first Wednesday after the resumption of school Term 1, 2014 and from after school Friday until 4.00 pm Saturday commencing on the first Saturday after the resumption of school Term 1 2014; and

ii) In the second week of such cycle, from after school Tuesday until the commencement of school on Wednesday commencing on the second Tuesday after the commencement of school term in Term 1, 2014 and from after-school Friday until 4.00 pm Sunday commencing on the second Friday after the resumption of school in Term 1, 2014.

b) For one half of the Term 1, 2 and 3 school holiday periods, and for this purpose, such period will commence at 10.00 am on the first day of such holiday periods.

c) Otherwise:

(i) From 5.00 pm on Friday until 5.00 pm on Saturday on alternate weekends commencing 20 December 2013;

(ii) From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;

(iii) From 9.00 am on 29 December 2013 until 9.00 am on 2 January 2014; and

(iv) From 9.00 am on 18 January 2014 until 9.00 am on 23 January 2014.

d) At such other times as the parties may agree in writing.

That the father and mother, within one (1) month from the date of these Orders, do all things necessary so as to in enrol in the Keeping Contact Program provided by C Counselling, and do all things necessary to each complete that program as soon as practicable, and upon completion, provide to the Independent Children’s Lawyer a certificate attesting as to their completion of the program and the sessions attended by each of them.

That for the purposes of changeovers, where not to or from school, the father or his agent known to the child shall facilitate the child being delivered to the mother’s residence at the commencement of the child’s time with the mother and collected from the mother’s residence at the conclusion of the child’s time with the mother.

That the mother and father ensure that the child is supervised at all times by a responsible adult when in their respective care.

That the mother and father be at liberty to attend on such occasions as are significant to the child’s welfare, schooling, sport, religious education and extracurricular activities where the attendance of either or both parents is to be reasonably expected.

Pursuant to section 62G (2) of the Family Law Act 1975 the parties and the child/children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

a) The benefit to the child of having a meaningful relationship with both of the child’s parents;

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

c) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

i. either of the child’s parents; or

ii. any other child or other person (including any grandparent or other relative of the child including sibling or step sibling) with whom the child has been living

including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

d) The capacity of:

i. each of the child’s parents; and

ii. any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability mental disability or risk of abuse;

e) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the family reporter thinks are relevant;

f) If the child is an Aboriginal Child or a Torres Strait Islander child:

i. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

ii. the likely impact any proposed parenting order will have on that right;

g) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

h) Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

i) Any other fact or circumstances that in the opinion of the Family Reporter is relevant.

10.

That the Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

11.

That the matter be adjourned to a date to be fixed before the Docket Registrar, for the purpose of releasing the Family Report.

12.

That following the release of the Family Report by a Registrar, the matter be relisted for a judicial case management hearing as soon as practicable for further directions.

13.

Following release of the Family Report and prior to the re-listed directions date each of the parties file and serve a minute of final orders sought by them as to parenting and both parties be in attendance in person on the re-listed directions date.

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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