GLADWIN & GLADWIN (No.2) - [2020] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLADWIN & GLADWIN (No.2)

[2020] FCCA 2091

Catchwords:
FAMILY LAW – Parenting – best interests of the child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D, 65DAC, 65DAE

Cases cited:

Lansa & Clovelly [2010] FamCA 80

Applicant:

MR GLADWIN

Respondent:

MS GLADWIN

File Number:

PAC 2293 of 2018

Judgment of:

Judge Newbrun

Hearing dates:

29 April 2020, 30 April 2020, 1 May 2020, 6 May 2020

Date of Last Submission:

6 May 2020

Delivered at:

Parramatta

Delivered on:

31 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Maroulis of Counsel

Solicitors for the Applicant:

Alexander Maroulis Lawyers

Counsel for the Respondent:

Ms Petrie of Counsel

Solicitors for the Respondent:	Keypoint Law
Counsel for the Independent Children’s Lawyer:	Ms Hamilton of Counsel
Solicitors for the Independent Children’s Lawyer:	JLM Family Lawyers Pty Ltd

ORDERS

The parties shall have equal shared parental responsibility for the child X (“the child") born in 2017.
That the child live with the Mother.
That the child spend time with the father as follows:
Until the child turns five years of age:
(a)Each Tuesday from 8:30 AM to 11:30 PM for 6 weeks in the father’s home supervised by B Families, with the parties to each share in the cost of the supervision; and then,
(b)Each Tuesday from 8:30 AM to 11.30 AM for two weeks, then,
(c)Each Tuesday from 8:30 AM to 1:30 PM for two weeks, then,
(d)Each Tuesday from 8:30 AM to 3:30 PM.
After the child turns five years of age:
(a)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Wednesday before school or 8:30 AM if not a school day for four occasions commencing on the first weekend after the child turns five; and thereafter;
(b)Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Thursday or 3:30 PM if not a school day.
After the child turns six years of age (in relation school holidays):
(a)For the first half of all term school holiday periods from after school on the last day of term for seven nights with changeover to occur at 4 PM;
(b)In the Christmas school holiday periods on a week about basis commencing from after school on the last day of term four for seven nights and each alternate seven nights thereafter.
From the commencement of these Orders:
(a)On Father’s Day from 10am to 2pm;
(b)From 2pm to 6pm on Christmas Day;
(c)On the child’s birthday from 10am to 2pm or if a school day then from after school or 3pm to 7pm.
That changeover occur at the entrance of Suburb C train station and, following the child commencing primary school, at the child’s primary school. Otherwise, during school holidays and/or on special occasions, changeover shall be, in the absence of agreement between the parties, at the entrance of Suburb C train station.
That the parents have FaceTime with the child…

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 GLADWIN & GLADWIN (No.2)

Details

AGLC: GLADWIN & GLADWIN (No.2) [2020] FCCA 2091
Case: [2020] FCCA 2091
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the matter of *Gladwin & Gladwin (No.2)*, Judge Newbrun of the Family Court of Australia considered parenting orders concerning a child born in 2017. The dispute involved the arrangements for the child's living arrangements, time spent with each parent, and communication and decision-making protocols.

The court was required to determine the specific orders necessary to ensure the child's best interests were met, particularly in relation to parental responsibility, the child's residence, and the allocation of time with each parent. This included establishing a phased approach to the father's time with the child, considering the child's age and development, as well as outlining provisions for school holidays, special occasions, and communication between the parents. The court also needed to address practical matters such as changeover locations, communication methods for urgent and non-urgent issues, and the exchange of personal contact details.

Judge Newbrun applied the paramount consideration of the child's best interests in crafting the parenting orders. The court established equal shared parental responsibility, with the child to live with the mother. A detailed schedule was set out for the child's time with the father, commencing with supervised time and gradually increasing to unsupervised overnight stays and alternate week arrangements as the child grew older. The orders also included specific provisions for communication, including FaceTime, and detailed protocols for medical care, school attendance, and dispute resolution through mediation. The court also made orders regarding the costs of the Independent Children's Lawyer.

Orders

Orders of the court

The parties shall have equal shared parental responsibility for the child X (“the child") born in 2017.

That the child live with the Mother.

That the child spend time with the father as follows:

Until the child turns five years of age:

(a) Each Tuesday from 8:30 AM to 11:30 PM for 6 weeks in the father’s home supervised by B Families, with the parties to each share in the cost of the supervision; and then,

(b) Each Tuesday from 8:30 AM to 11.30 AM for two weeks, then,

(d) Each Tuesday from 8:30 AM to 3:30 PM.

After the child turns five years of age:

(a) Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Wednesday before school or 8:30 AM if not a school day for four occasions commencing on the first weekend after the child turns five; and thereafter;

(b) Each alternate week on Tuesday from after school or 3:30 PM if not a school day to Thursday or 3:30 PM if not a school day.

After the child turns six years of age (in relation school holidays):

(a) For the first half of all term school holiday periods from after school on the last day of term for seven nights with changeover to occur at 4 PM;

(b) In the Christmas school holiday periods on a week about basis commencing from after school on the last day of term four for seven nights and each alternate seven nights thereafter.

From the commencement of these Orders:

(a) On Father’s Day from 10am to 2pm;

(b) From 2pm to 6pm on Christmas Day;

That changeover occur at the entrance of Suburb C train station and, following the child commencing primary school, at the child’s primary school. Otherwise, during school holidays and/or on special occasions, changeover shall be, in the absence of agreement between the parties, at the entrance of Suburb C train station.

That the parents have FaceTime with the child each Wednesday between 6pm and 6.30pm when the child is in the other parent’s care pursuant to these Orders.

That the parents communicate urgent matters in relation to the child via text message and non-urgent matters in relation to the child via email.

That within 7 days of the date of these Orders, the parents shall provide to each other their current mobile telephone number, email address and current residential address and any changes thereto within 48 hours of any such change occurring.

That these Orders are sufficient to ensure that any school or preschool or day care facility that the child may attend will have authority to provide to both parents, all material usually available to parents and both parents are authorised to attend any school functions and events usually open to parents.

That should the child require urgent medical care or be hospitalised, then the parent with care of the child shall contact the other parent as soon as possible and provide details sufficient for the other parent to attend the hospital or medical facility to which the child has been admitted.

10.

That the parents will advise each other of any proposed appointments with any specialist medical practitioner or dental practitioner at least 48 hours prior to that appointment occurring and this Order authorises both parents to be able communicate with any medical or dental practitioner that the child attends upon and receive all information usually available to parents.

11.

That the parents shall not speak in a derogatory manner about the other parent or a member of the other parent’s household within the presence or hearing of the child and will remove the child from the presence or hearing of any third party seeking to do so.

12.

That after consultation, should the parents not be able to agree to a school for the child or make any other decisions in relation to the child’s health and welfare, then the parents shall arrange and participate in mediation to resolve any dispute.

13.

By consent, the parties shall each pay the sum of $6,572 to the Independent Children’s Lawyer for her costs, but their obligation to pay such costs shall be deferred for six months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.