Garrett and Trueman and Anor - [2019] FCCA 526

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARRETT & TRUEMAN & ANOR

[2019] FCCA 526

Catchwords:
FAMILY LAW – Parenting – 4 year old child lived with maternal aunt since 8 months old – competing live with applications as between aunt and father – best interest considerations.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 60CG, 65DAA, 64B

Cases cited:

Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263
Burton & Churchin (2013) FLC 93-561
CDJ v VAJ (1998) FLC 92-828

Donnell & Dovey [2010] FamCAFC 15

Goode & Goode (2007) 36 FamLR 422
Jones v Dunkel (1959) 101 CLR 298
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Oram & Lambert & Ors [2019] FamCAFC 4
Rice v Miller (1993) FLC 92-415
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:

MR GARRETT

First Respondent:

MS TRUEMAN

Second Respondent:

MS A TRUEMAN

File Number:

PAC 4457 of 2015

Judgment of:

Judge Obradovic

Hearing dates:

20 - 21 September 2018

Date of Last Submission

19 October 2018

Delivered at:

Parramatta

Delivered on:

6 March 2019

REPRESENTATION

Counsel for the Applicant:

Ms Beck

Solicitors for the Applicant:

Legal Aid New South Wales

Appearing for the First Respondent:

No appearance

Counsel for the Second Respondent:

Ms Hamilton

Solicitors for the Second Respondent:

Rafton Family Lawyers

Counsel for the Independent Children's Lawyer:

Ms Rebehy

Solicitors for the Independent Children's Lawyer:

O'Donnell & Associates Family Lawyers

ORDERS

All prior parenting orders with respect to the child [X] born … 2014 are discharged.
The father shall have sole parental responsibility for the child, [X] born … 2014.
The child shall live with the father.
The child shall spend time with and communicate with the First Respondent as agreed between the First Respondent, the Second Respondent and the father in writing and that such time is to be supervised by the Second Respondent.
The child shall spend time with the Second Respondent as agreed between the parties in writing and failing agreement, as follows:
(a)Until 31 March 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Saturday;
(b)From 1 April 2019 until 5 May 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Friday;
(c)From 6 May 2019 until 2 June 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Thursday;
(d)From 3 June 2019 until 30 June 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Wednesday;
(e)From 1 July 2019 until 28 July 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Tuesday;
(f)From 29 July 2019 until 25 August 2019:
(i)Each week from 6pm Sunday to 8.30am on the following Monday;
(g)From 26 August 2019 until the child commences school:
(i)Each alternate weekend from after school or 5pm on Friday until 5pm on Sunday;
(ii)For seven nights commencing at 9am on 2 January and concluding at 9am on 9 January.
(h)Upon the child commencing school:
(i)During the school terms,…

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: [2019] FCCA 526
Decision Date: 6 March 2019

CaseChat Overview and Summary

In *Garrett and Trueman*, the Federal Circuit Court of Australia considered competing applications for the live with arrangements of a four-year-old child. The child had resided with her maternal aunt since she was eight months old, and the proceedings involved applications by both the aunt and the child's father.

The central legal issue before the court was to determine the best interests of the child, as mandated by the *Family Law Act 1975* (Cth), in the context of competing live with applications. This required the court to weigh various factors, including the child's established living arrangements with the aunt against the father's parental rights and responsibilities.

Judge Obradovic reasoned that while the child had lived with the aunt for a significant period, the father's capacity to provide a stable and nurturing environment was paramount. The court discharged all prior parenting orders and made orders for the father to have sole parental responsibility and for the child to live with him. The orders also established a detailed schedule for the child to spend time with and communicate with the aunt, with provisions for supervised contact initially and a phased introduction of unsupervised time. Further orders addressed communication between the parties, injunctions against physical discipline, and the importance of avoiding derogatory remarks about each other in the child's presence.

Orders

Orders of the court

All prior parenting orders with respect to the child [X] born … 2014 are discharged.

The father shall have sole parental responsibility for the child, [X] born … 2014.

The child shall live with the father.

The child shall spend time with and communicate with the First Respondent as agreed between the First Respondent, the Second Respondent and the father in writing and that such time is to be supervised by the Second Respondent.

The child shall spend time with the Second Respondent as agreed between the parties in writing and failing agreement, as follows:

(a) Until 31 March 2019:

(i) Each week from 6pm Sunday to 8.30am on the following Saturday;

(b) From 1 April 2019 until 5 May 2019:

(i) Each week from 6pm Sunday to 8.30am on the following Friday;

(i) Each week from 6pm Sunday to 8.30am on the following Thursday;

(d) From 3 June 2019 until 30 June 2019:

(i) Each week from 6pm Sunday to 8.30am on the following Wednesday;

(e) From 1 July 2019 until 28 July 2019:

(i) Each week from 6pm Sunday to 8.30am on the following Tuesday;

(f) From 29 July 2019 until 25 August 2019:

(i) Each week from 6pm Sunday to 8.30am on the following Monday;

(g) From 26 August 2019 until the child commences school:

(i) Each alternate weekend from after school or 5pm on Friday until 5pm on Sunday;

(ii) For seven nights commencing at 9am on 2 January and concluding at 9am on 9 January.

(h) Upon the child commencing school:

(i) During the school terms, on each alternate weekend from after school or 5pm on Friday to 5pm on Sunday;

(ii) During the two week school holidays usually occurring in April, July and October from 9am on the first Saturday of the school holidays to 5pm on the following Friday.

(iii) During the December/January summer school holidays for 14 nights commencing at 9am on 2 January and concluding at 9am on 16 January.

(i) On special occasions, if the Second Respondent is not otherwise spending time with the child:

(i) In years ending with an even number, from 11am on 23 December to 11am on 25 December;

(ii) In years ending with an odd number, from 5pm on 25 December to 5pm on 27 December;

(iii) On the child’s birthday, if a school day from the conclusion of school (or otherwise 3.30pm) to 5.30pm and if a non-school day, for a period of three hours as agreed between the parties in writing or otherwise from 10am to 1pm; and

(iv) Any other times as agreed between the parties in writing.

(j) From the time the child reaches 12 years of age, in accordance with her own wishes.

To facilitate the Second Respondent spending time with the child, changeover shall occur at the child’s day care/school/afterschool care provider and in the event that changeover does not coincide with the child’s day care/school/afterschool care changeover shall occur with the Second Respondent collecting the child from the father’s residence at the commencement of time and with the father collecting the child from the Second Respondent’s residence at the conclusion of time.

Each of the parties are restrained by injunction from causing the child to be physically disciplined or causing, permitting or allowing any third person from doing so.

The Second Respondent shall communicate with the child as agreed between the parties in writing and failing agreement, each Tuesday between 6pm and 7pm.

The Second Respondent shall be and is hereby restrained from bringing the child into contact with the First Respondent without agreement in writing from the father.

10.

The parties shall communicate by SMS in respect of arrangements concerning the child unless the matter is urgent, in which case the parties will communicate by telephone.

11.

The parties shall refrain from making critical or derogatory remarks in relation to the other parties in the presence or hearing of the child and each party will use their best endeavours to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

12.

The father shall provide the Second Respondent with a copy of the child’s school report and school photograph order form within 14 days of him receiving them.

13.

In the event that the child suffers a medical emergency requiring medical attention while in the care of either party the other party is to be notified as soon as practicable and provided with the full details of the practitioner and/or medical facility upon which the child is attending as soon as practicable.

14.

Each party shall keep the other party advised of their contact telephone numbers and address and advise the other party of any changes to these details within seven days of such change occurring.

15.

Remove all outstanding issues 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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