Gatenby and Chisler (No. 2) - [2019] FamCA 443

FAMILY COURT OF AUSTRALIA

GATENBY & CHISLER (NO. 2)

[2019] FamCA 443

FAMILY LAW – PARENTING – Determining what is in the best interests of the children – considering the best interests of each of the three children – noting the individual characteristics of each of the children – whether different orders should be made for the different children – where there has been a relationship breakdown between one child and one of the parents.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the parties largely agree on matters of parental responsibility – where the parties agree on equal shared parental responsibility despite the parties having poor communication – where one parent wants to introduce the children to their biological half siblings and the other parent does not – where the parties seek that the Court determines parental responsibility in relation to the biological half siblings.

FAMILY LAW – REOPENING – Where the case was reopened following hearing and prior to the delivery of judgment – where new evidence was presented – where one child has run away on several occasions since the previous hearing – where one child is refusing to see or to be in the care of one parent.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
International Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Article 8

Morgan v Miles (2007) FLC 93-343
Ralton & Ralton [2017] FamCAFC 182
U & U (2002) 211 CLR 238

APPLICANT:

Ms Gatenby

RESPONDENT:

Ms Chisler

FILE NUMBER:

MLC

3057

2016

DATE DELIVERED:

8 July 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Melbourne

JUDGMENT OF:

Gill J

HEARING DATE:

29 October – 1 November 2018; and 15 – 17 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson (2018 hearing)

SOLICITOR FOR THE APPLICANT:

Marshalls and Dent and Wilmoth (2018 hearing) and self-representing (2019 hearing)

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Leanne Cain & Associates

Orders

That Ms Chisler and Ms Gatenby have equally shared parental responsibility for B (born … 2006), C and D (both born … 2008) (“the children”);
That, unless otherwise agreed by the parties in writing, B live with the parties on the following basis:
(a) During school term:
(i)With Ms Gatenby each second weekend from the end of school time on the Friday until the recommencement of school the following week, commencing on the first weekend following the start of each school term;
(ii)Otherwise with Ms Chisler;
(b)During school holiday time other than during the long summer break and other than the July 2019 school holidays:
(i)In even numbered years with Ms Chisler from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Gatenby from then until the commencement of school;
(ii)In odd numbered years with Ms Gatenby from the conclusion of school term until 5pm on the Saturday closest to the mid-point…

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] FamCA 443
Decision Date: 8 July 2019

CaseChat Overview and Summary

This matter came before Gill J concerning parenting orders for three children, B, C, and D. The dispute centred on the best interests of each child, particularly in light of a breakdown in the relationship between one child and one of the parents, and the parents' differing views on introducing the children to their biological half-siblings. The case was reopened prior to judgment due to new evidence, including instances of one child running away and refusing contact with a parent.

The court was required to determine what parenting orders would be in the best interests of each of the three children, considering their individual characteristics and circumstances. A key issue was whether different orders should be made for each child. The court also had to address the parties' differing views on the introduction of the children to their biological half-siblings, and how parental responsibility should be exercised in relation to this matter, despite the parties largely agreeing on equal shared parental responsibility.

Gill J applied the principles of the *Family Law Act 1975* (Cth) regarding the best interests of the child. The court acknowledged the parties' agreement on equal shared parental responsibility, despite their poor communication. The reasoning involved a careful consideration of the individual needs and circumstances of each child, particularly the difficulties experienced by one child in their relationship with a parent. The court also recognised the significance of the decision to introduce the children to their biological half-siblings as a major long-term issue, requiring careful consideration under section 65DAC of the Act. The court made detailed orders for the children's living arrangements, including specific provisions for school terms, holidays, and significant dates like Christmas and birthdays, and also ordered that each party facilitate electronic communication between the children and the other parent, and refrain from speaking negatively about the other parent in the children's presence.

Orders

Orders of the court

That Ms Chisler and Ms Gatenby have equally shared parental responsibility for B (born … 2006), C and D (both born … 2008) (“the children”);

That, unless otherwise agreed by the parties in writing, B live with the parties on the following basis:

(a) During school term:

(i) With Ms Gatenby each second weekend from the end of school time on the Friday until the recommencement of school the following week, commencing on the first weekend following the start of each school term;

(ii) Otherwise with Ms Chisler;

(b) During school holiday time other than during the long summer break and other than the July 2019 school holidays:

(i) In even numbered years with Ms Chisler from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Gatenby from then until the commencement of school;

(ii) In odd numbered years with Ms Gatenby from the conclusion of school term until 5pm on the Saturday closest to the mid-point of the break and with Ms Chisler from then until the commencement of school;

(i) For long breaks commencing in even numbered years with Ms Chisler from the conclusion of school until 5pm on the mid-point day and with Ms Gatenby from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

(ii) For long breaks commencing in odd numbered years with Ms Gatenby from the conclusion of school until 5pm on the mid-point day and with Ms Chisler from 5pm on the mid-point day until the conclusion of school on the first Friday following the commencement of the school year;

(iii) For the purposes of calculating the mid-point day, the school holidays be deemed to commence from the conclusion of school on the last day of the school term and conclude at the commencement of the first day of the new school year;

That, unless otherwise agreed by the parties in writing, C and D live with the parties on the following basis:

(a) During school term:

(i) With Ms Gatenby each alternate week from the end of school time on the Friday until the conclusion of school the following Friday, commencing on the first Friday following the start of each school term;

(ii) Otherwise with Ms Chisler;

(b) During school holiday time other than during the long summer break:

That in the event the children are not already spending at least two consecutive nights with Ms Gatenby (pursuant to any other Order herein) during Hanukkah, the children’s time with Ms Chisler will be suspended for two consecutive nights from after school (or 5pm if a non-school day) until the commencement of school (or 5pm if a non-school day) with such days to be agreed between the parties and in default of agreement for the first and second nights of Hanukkah each year, with Ms Chisler to have make-up time as agreed in the week prior or the week after Hanukkah.

Notwithstanding any other provision in these Orders:

(a) The children will spend time with the parties for Christmas as follows:

(i) In odd numbered years:

A. With Ms Gatenby from 1pm on 24 December until 1pm on 25 December; and

B. With Ms Chisler from 1pm on 25 December until 1pm on 26 December.

(ii) In even numbered years:

A. With Ms Chisler from 1pm on 24 December until 1pm on 25 December; and

B. With Ms Gatenby from 1pm on 25 December until 1pm on 26 December.

(b) The children will spend time with each parent on the parent’s birthday (if they are not already in the care of that parent) from after school (or 10am if a non-school day) until the commencement of school the following day (or 10am if a non-school day).

(c) On each child’s birthday that child will spend time with the non-resident parent from the conclusion of school (or 3.30pm if a non-school day) until 7.30pm that day.

Each party shall facilitate the children to communicate by electronic communication with the other party at all reasonable times as requested by the children.

Each party is restrained from saying bad things about the other party in the presence of the children.

It is declared that the decision to introduce the children to their donor siblings (diblings) is a decision about a major long term issue and so requires the parties to comply with their obligations pursuant to s 65DAC in relation to making such a decision.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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