HERON & PEMBROKE - [2015] FamCA 120

FAMILY COURT OF AUSTRALIA

HERON & PEMBROKE

[2015] FamCA 120

FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the child – Where there is one child who is 17 months of age – Where there has been some difficulty in the child being able to spend time with the father – Where the father seeks an increase in time spent with the child – Orders made for the child to spend frequent short periods of time with his father.

Family Law Act 1975 (Cth) – ss 60CC, 61C, 61DA,

APPLICANT:

Ms Heron

RESPONDENT:

Mr Pembroke

FILE NUMBER:

SYC

4058

2014

DATE DELIVERED:

9 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

9 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:

Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton, SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

That by consent orders are made in accordance with the hand-written Minute of Consent Orders filed in Court today signed by the parents and their respective solicitors and by Johnston J and placed with the Court papers as set out hereunder:-

By consent
1.That in relation to the application for contravention of parenting orders filed by the father on 24 October 2014:
1.1The mother admits that she contravened the orders made 30/7/14 in that she did not make the child [B] born …2013 available to spend time with the father on 27, 28 and 29 September 2014; however

1.2The mother contends that on each occasion of contravention she had a reasonable excuse; and

1.3The application for contravention is adjourned for mention on a date to be allocated by the docket registrar after the release of Chapter 15 single parenting expert report.

That orders are made in accordance with the document headed Minute of Order Sought by the Mother signed by Johnston J and placed with the Court papers as set out hereunder:-

1.That order 3 of the orders dated 11 November 2014 be suspended pending assessment by the single expert [Dr C].

…
5.That pending provision of the Report of [Dr C], the child shall spend time with the father in accordance with the document headed Minute of Order Sought by the Father [as set out hereunder] as amended in blue biro on the basis that the mother shall arrange for her mother to attend all occasions of spending time unless for good reason her mother is unavailable in which case the mother shall attend that responsibility.
Minute of Order Sought by the Father
1.That by way of implementation and further definition, that the orders made by Senior Registrar Campbell on 11 November 2014 be specified such that the father shall spend time with the child [B] (“the child”):
a.In [D Town] on the following dates:

Saturday, 21 February 2015 from 10 am – 1 pm
Saturday 14 March 2015 from 10 am – 1 pm
Saturday 28 March 2015 from 10 am – 1 pm

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 HERON & PEMBROKE

Details

AGLC: HERON & PEMBROKE [2015] FamCA 120
Case: [2015] FamCA 120
Decision Date: 9 February 2015

CaseChat Overview and Summary

In the matter of *Heron & Pembroke*, Johnston J of the Family Court of Australia considered an application by the father for contravention of parenting orders and related applications concerning the child, [B]. The mother admitted to contravening previous orders by failing to make the child available to spend time with the father on specific dates in September 2014. However, she contended that she had reasonable excuses for these contraventions.

The court was required to determine the mother's alleged contraventions of parenting orders and to make orders regarding the child's time with the father, pending the outcome of a single parenting expert report. The proceedings also involved the suspension of a prior order and the implementation of specific arrangements for the child's time with each parent.

Johnston J made consent orders addressing the contravention application, adjourning it for mention after the release of the expert report, with the mother's reasonable excuse defence to be considered. The court also made orders suspending a previous order pending assessment by a single expert, Dr C. Crucially, pending Dr C's report, the child's time with the father was to be in accordance with a minute of order sought by the father, which detailed specific dates and times for the child to spend with the father in two different towns. These orders included provisions for the mother's mother to attend all changeovers unless unavailable, in which case the mother was to attend. The court also stipulated that the particulars of the obligations and consequences of contravention, as set out in a fact sheet, were incorporated into the orders pursuant to sections 62B and 65DA(2) of the *Family Law Act 1975*.

Orders

Orders of the court

That by consent orders are made in accordance with the hand-written Minute of Consent Orders filed in Court today signed by the parents and their respective solicitors and by Johnston J and placed with the Court papers as set out hereunder:-

By consent

1. That in relation to the application for contravention of parenting orders filed by the father on 24 October 2014:

1.1 The mother admits that she contravened the orders made 30/7/14 in that she did not make the child [B] born …2013 available to spend time with the father on 27, 28 and 29 September 2014; however

1.2 The mother contends that on each occasion of contravention she had a reasonable excuse; and

1.3 The application for contravention is adjourned for mention on a date to be allocated by the docket registrar after the release of Chapter 15 single parenting expert report.

That orders are made in accordance with the document headed Minute of Order Sought by the Mother signed by Johnston J and placed with the Court papers as set out hereunder:-

1. That order 3 of the orders dated 11 November 2014 be suspended pending assessment by the single expert [Dr C].

…

5. That pending provision of the Report of [Dr C], the child shall spend time with the father in accordance with the document headed Minute of Order Sought by the Father [as set out hereunder] as amended in blue biro on the basis that the mother shall arrange for her mother to attend all occasions of spending time unless for good reason her mother is unavailable in which case the mother shall attend that responsibility.

Minute of Order Sought by the Father

1. That by way of implementation and further definition, that the orders made by Senior Registrar Campbell on 11 November 2014 be specified such that the father shall spend time with the child [B] (“the child”):

a. In [D Town] on the following dates:

Saturday, 21 February 2015 from 10 am – 1 pm

Saturday 14 March 2015 from 10 am – 1 pm

Saturday 28 March 2015 from 10 am – 1 pm

Saturday 18 April 2015 from 10 am – 1 pm

Saturday 16 May 2015 from 10 am – 1 pm

Saturday 6 June 2015 from 10 am – 1 pm

Saturday 27 June 2015 from 10 am – 1 pm

Saturday 25 July 2015 from 10 am – 1 pm

b. In [E Town] on the following dates:

Saturday 7 March 2015 from 10 am – 1 pm

Sunday 8 March 2015 from 10 am – 1 pm

Saturday 11 April 2015 from 10 am – 1 pm

Sunday 12 April 2015 from 10 am – 1 pm

Saturday 2 May 2015 from 10 am – 1 pm

Sunday 3 May 2015 from 10 am – 1 pm

Saturday 23 May 2015 from 10 am – 1 pm

Sunday 24 May 2015 from 10 am – 1 pm

Saturday 20 June 2015 from 10 am – 1 pm

Sunday 21 June 2015 from 10 am – 1 pm

Saturday 11 July 2015 from 10 am – 1 pm

Sunday 12 July 2015 from 10 am – 1 pm

Saturday 1 August 2015 from 10 am – 1 pm

Sunday 2 August 2015 from 10 am – 1 pm

That the mother shall arrange for the child to be delivered to the father at his residence at D Town in accordance with these orders at the commencement of each of the times for the child to spend with the father there and arrange for the collection of the child at the father’s residence at the conclusion.

That the father shall collect the child from the mother’s residence at E Town at the commencement of each specified time and return the child to the same place at conclusion.

That on all occasions when the grandmother shall be present, she is the person who should changeover the child and she should do so in the absence of the mother.

That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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.