Inwood & Barnett - [2008] FMCAfam 1446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INWOOD & BARNETT

[2008] FMCAfam 1446

FAMILY LAW – Interim parenting order – stay application pending appeal – principles applicable to stay – stay granted.

Family Law Act 1975, s.68L (2)

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Clemmett v Clemmett (1981) FLC 93-103
Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220
EJK v TLS (No 2) (2006) 35 FLR 590
Elspeth v Peter [2007] FamCA 254
Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24^th January 2008)
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
M v DB [2007] 36 FLR 501
Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27^th June 2007)
O v L (2005) 196 FLR 224
U v U (2002) 211 CLR 238

Applicant:

MS INWOOD

Respondent:

MR BARNETT

File Number:

CAC 1019 of 2008

Judgment of:

Neville FM

Hearing date:

1 December 2008

Date of Last Submission:

1 December 2008

Delivered at:

Canberra

Delivered on:

2 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski SC

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson Family Lawyers

Counsel for the Respondent:

Mr Crispin

Solicitors for the Respondent:

S & T Lawyers

ORDERS

As from the beginning of the 2008/2009 New South Wales Christmas School holidays, the child [X] born in 2000 is to spend half of those holidays with her mother and half with her father. The mother is to have the first half of the school holidays and the father the second half. The place and time of changeover is to be agreed between the parties.
The parents shall continue to have equal shared parental responsibility for the child.
The stay application in relation to Orders 1 and 2 dated 20 August 2008 is granted. The stay will become operational upon the commencement of the 2008/2009 New South Wales Christmas School holidays. Upon the conclusion of those school holidays the following orders will apply.
As from the commencement of the ACT School year in 2009, [X] is to attend the school in Canberra that she last attended prior to her removal to the South Coast of New South Wales. Upon her recommencement at that school, until further order or as otherwise agreed between the parties, she is to live with each parent on a week about basis. The place and time of changeover is to be agreed between the parties. In the absence of agreement, changeover is to take place immediately after school each Friday afternoon.
[X] is to have regular telephone contact with the non-resident parent. These telephone calls are not to be monitored by either of the parents.
Both parents are restrained from discussing these Court proceedings with the child, or doing so in her presence and they must use their best endeavours to ensure…

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 Inwood & Barnett

Details

AGLC: Inwood & Barnett [2008] FMCAfam 1446
Case: [2008] FMCAfam 1446
Decision Date: 2 December 2008

CaseChat Overview and Summary

Inwood and Barnett were involved in a dispute over the care and custody of their daughter [X], born in 2000. The matter was heard in the Family Court of Australia, where several orders regarding the child's living arrangements, contact, and representation were to be decided. The primary concern was to determine the most suitable arrangement for the child's welfare, including the division of parental responsibilities and the child's schooling and holiday schedules.

The legal issues before the court encompassed the allocation of parental responsibilities, the child's school placement and holiday schedule, and the necessity for independent representation for the child. The court needed to consider the best interests of the child, including her emotional and educational needs, while balancing the rights and responsibilities of both parents. The court also had to decide on the appropriate measures to protect the child from potential harm caused by parental conflict.

The court determined that the child should spend half of the New South Wales Christmas School holidays with her mother and half with her father, with the mother having the first half and the father the second half. Both parents were to maintain equal shared parental responsibility for the child. The court granted a stay on certain orders to ensure a smooth transition during the school holidays. Regarding the child's schooling, [X] was to return to her previous school in Canberra and alternate living with each parent on a weekly basis. The court also ordered that both parents refrain from discussing the proceedings with the child and from speaking ill of each other in her presence. Furthermore, the court mandated that the parties share the costs of a Family Consultant and that the child be separately represented by the ACT Legal Aid Office. Finally, the court ordered that the Independent Children's Lawyer be notified of their appointment and that relevant documents be provided to them promptly.

These orders were made to ensure the best interests of the child, protecting her from the negative impacts of parental conflict and providing a stable environment for her education and well-being. The court's decisions aimed to balance the rights and responsibilities of both parents while prioritising the child's needs.

Orders

Orders of the court

As from the beginning of the 2008/2009 New South Wales Christmas School holidays, the child [X] born in 2000 is to spend half of those holidays with her mother and half with her father. The mother is to have the first half of the school holidays and the father the second half. The place and time of changeover is to be agreed between the parties.

The parents shall continue to have equal shared parental responsibility for the child.

The stay application in relation to Orders 1 and 2 dated 20 August 2008 is granted. The stay will become operational upon the commencement of the 2008/2009 New South Wales Christmas School holidays. Upon the conclusion of those school holidays the following orders will apply.

As from the commencement of the ACT School year in 2009, [X] is to attend the school in Canberra that she last attended prior to her removal to the South Coast of New South Wales. Upon her recommencement at that school, until further order or as otherwise agreed between the parties, she is to live with each parent on a week about basis. The place and time of changeover is to be agreed between the parties. In the absence of agreement, changeover is to take place immediately after school each Friday afternoon.

[X] is to have regular telephone contact with the non-resident parent. These telephone calls are not to be monitored by either of the parents.

Both parents are restrained from discussing these Court proceedings with the child, or doing so in her presence and they must use their best endeavours to ensure that no other person does so either.

Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the child, or doing so in her presence and they must use their best endeavours to ensure that no one else does so either.

Pursuant to section 11F of the Family Law Act 1975 the parties are to arrange for a Family Consultant who is able to attend each of their respective residences, and preferably on more than one occasion, to prepare a report that will be used at the final hearing in these proceedings. Any costs associated with this consultant are to be shared equally between the parties.

Pursuant to section 68L (2) of the Family Law Act 1975, the child [X], born in 2000, be separately represented and it is requested that the ACT Legal Aid Office arrange such representation.

10.

Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

11.

Within 48 hours of notification of such appointment the solicitors for the respective parties are to provide to the Independent Child’s Lawyer copies of all relevant documents relied upon.

12.

The mention of this matter on 10 December 2008 be vacated.

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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