Gottspiel and Rufus - [2009] FamCA 512

FAMILY COURT OF AUSTRALIA

GOTTSPIEL & RUFUS

[2009] FamCA 512

FAMILY LAW – CHILDREN – Whether equal shared responsibility is possible where the parties are antipathetic towards each other and do not communicate orally – parties were in a de facto relationship for 16 years – parties each gave birth to children (Respondent gave birth to twin boys in 1997, Applicant gave birth to a son in 2001) –
by what surname the children should be known – whether declaration of parentage for children of respective non-biological mothers should be made (substantial consent to this proposed order between the parties) – what time should be spent between the two parents given substantial agreement between the parties about quantity but not actual days – what allocation of time to be spent during school holidays between parties and children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69VA

APPLICANT:

Ms Gottspiel

RESPONDENT:

Ms Rufus

FILE NUMBER:

CAC

588

2007

DATE DELIVERED:

18 June 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

15-17 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Farrar

SOLICITOR FOR THE APPLICANT:

Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT:

Mr I Nash

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

The applicant, Ms Gottspiel, and the respondent, Ms Rufus, will share equal parental responsibility for the children W, born on … July 2001, and N, born on … September 1997, and A, born on … September 1997.
a.Notwithstanding the last mentioned order, in relation to long-term issues concerning any child’s education including the schools that that child will attend and any issue relating to the health of such child.
b.In relation to any such issue nothing herein permits either parent to undertake any decision about any child’s education or health without consultation with the other parent.
c.Notwithstanding the last mentioned order neither parent will commit any child to any private school which would involve the commitment of the other parent to financial contribution without that parent’s consent. However nothing in this sub-order prevents applications being made to the Child Support Agency for a departure from existing child support arrangements to take account of the possibility that either or both parents should contribute to the costs of education of the children.
Pursuant to s 69VA of the Family Law Act 1975 (Cth) each of Ms Gottspiel and Ms Rufus are declared to be a parent of the children W, born on … July 2001, and N born on … September 1997 and A born on … September 1997.
a. All three children will spend time with the applicant (over a fourteen day cycle) from after school on the Thursday of the first week of the fourteen day cycle until after school on the following Tuesday (in the second week of the fourteen day cycle).
b.W will spend the next two days, that is the Wednesday and Thursday, of the second week of the fourteen day…

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 Gottspiel and Rufus

Details

AGLC: Gottspiel and Rufus [2009] FamCA 512
Case: [2009] FamCA 512
Decision Date: 18 June 2009

CaseChat Overview and Summary

In *Gottspiel and Rufus*, heard before Faulks DCJ, the dispute concerned parenting orders for three children, W, N, and A. The court was required to determine the best interests of the children in relation to their living arrangements, parental responsibility, and the use of their names.

The court's determination of the children's best interests was guided by the provisions of section 60CC of the *Family Law Act 1975* (Cth). This involved considering primary considerations such as the benefit to the children of a meaningful relationship with both parents and the need to protect them from harm. Additionally, the court took into account various additional considerations, including the children's views, the nature of their relationships with each parent, each parent's willingness and ability to foster a relationship with the other parent, the likely effect of any changes in circumstances, the practicalities and expense of contact, the capacity of each parent to provide for the children's needs, and the children's individual characteristics.

The court made detailed orders regarding shared parental responsibility, including specific provisions for long-term decisions about education and health, requiring consultation between parents. It also established a detailed schedule for the children's time with each parent, including provisions for special days and school holidays. Notably, the court ordered that the children would share both parents' surnames, with specific instructions on how they would be referred to and the potential for formal changes to birth certificates.

Orders

Orders of the court

The applicant, Ms Gottspiel, and the respondent, Ms Rufus, will share equal parental responsibility for the children W, born on … July 2001, and N, born on … September 1997, and A, born on … September 1997.

a. Notwithstanding the last mentioned order, in relation to long-term issues concerning any child’s education including the schools that that child will attend and any issue relating to the health of such child.

b. In relation to any such issue nothing herein permits either parent to undertake any decision about any child’s education or health without consultation with the other parent.

c. Notwithstanding the last mentioned order neither parent will commit any child to any private school which would involve the commitment of the other parent to financial contribution without that parent’s consent. However nothing in this sub-order prevents applications being made to the Child Support Agency for a departure from existing child support arrangements to take account of the possibility that either or both parents should contribute to the costs of education of the children.

Pursuant to s 69VA of the Family Law Act 1975 (Cth) each of Ms Gottspiel and Ms Rufus are declared to be a parent of the children W, born on … July 2001, and N born on … September 1997 and A born on … September 1997.

a. All three children will spend time with the applicant (over a fourteen day cycle) from after school on the Thursday of the first week of the fourteen day cycle until after school on the following Tuesday (in the second week of the fourteen day cycle).

b. W will spend the next two days, that is the Wednesday and Thursday, of the second week of the fourteen day cycle with the applicant. A and N will spend those days with the respondent.

a. All three children will spend the following time with the respondent:

i. From after school on the Monday of the first week (of the fourteen day cycle) until after school on Wednesday of the first week of the fourteen day cycle.

ii. N and A will spend from after school on the Wednesday of the second week of the fourteen day cycle until they return to school on the Monday of the first week in the next fourteen day cycle with the respondent.

iii. W will spend from after school on the Friday of the second week of the fourteen day cycle until he returns to school on the Monday of the first week of the next fourteen day cycle with the respondent.

Notwithstanding the last mentioned orders the following special days will be celebrated and time will be spent with the parents:

a. All of the children will spend from after school until 5.00 pm with the parent with whom they are not living on each of the children’s birthdays.

b. All of the children will spend from after school until 7.00 pm with the parent with whom they are not living if it is that parent’s birthday.

c. The parents will make such arrangements as they consider to be appropriate about Mother’s Day when no order is made in relation thereto.

Notwithstanding the orders made hereafter in relation to the long vacation at the end of the year the children will spend Christmas Eve in each year (unless the parents otherwise agree) with the respondent between the hours of 9.00 am and 10.00 pm.

a. The children will spend each Christmas Day with the applicant (if they are not otherwise living with her in accordance with these orders) from 9.00 am until 8.00 pm (unless the parties otherwise agree).

The three children will spend the first half of each of the shorter school holiday periods with the applicant in years ending in an odd number and with the respondent in years ending in an even number or zero and will spend the other half of the holidays with the other parent (unless the parties otherwise agree).

For the Christmas school holidays the three children will spend time with each of the parents alternately on a pattern of two weeks, two weeks, one week, one week with their spending time with the applicant for the first two weeks in years ending in an odd number and with the respondent in years ending in an equal number or zero and alternating thereafter (unless the parties otherwise agree).

a. Each of the parties be and is hereby restrained from changing any child’s surname from, in the case of W, “Gottspiel” or in the case of A and N, “Rufus”.

b. However, each parent will cause the children to incorporate into their forenames the surname of the other parent so that W will be known as W Rufus Gottspiel, N will be known as N Gottspiel Rufus and A will be known as A Gottspiel Rufus.

c. Either parent may use this order for the purposes of formally changing the birth certificate for any child but is not obliged to do so.

d. Each parent will refer to the children by the names set out above and be and is hereby restrained from causing or allowing (to the extent that she has any ability so to control) any other person or body from referring to any of the children other than by the surnames set out above.

10.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

11.

The matter be removed from the active cases list.

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

In determining what constitutes the best interests of the child, I am obliged to take account of the matters set out under s 60CC. I am obliged to do this because in making any particular parenting order the Court must regard the best interests of the child as the paramount consideration, which is the effect of s 60CA of the Family Law Act 1975 (Cth). Section 60CC(2) and s 60CC(3) relevantly provides: Primary Considerations(2) The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Additional Considerations(3) Additional considerations are:(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b)The nature of the relationship of the child with:(i)Each of the child’s parents; and(ii)Other persons (including any grandparent or other relative of the child); (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d)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 his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)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; (g)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 court thinks are relevant;(h)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 under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child’s family; (k)any family violence order that applies to the child or a member of the child’s family; if:(i)the order is a final order; or(ii)the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m)any other fact or circumstance that the court thinks is relevant.