JARMIN & ELSTONE (No.3) - [2018] FCCA 2724

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMIN & ELSTONE (No.3)

[2018] FCCA 2724

Catchwords:
FAMILY LAW – Parenting – live with and spend time – historic physical abuse of child by mother’s former partner – attachment difficulties for child – risk to child’s psychological and emotional development if child continues to live with mother – order that child live with father.

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65D(1), 65DAA
Federal Circuit Court Rules 2001 (Cth), r.1
Evidence Act 1995 (Cth), s.128

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Applicant:

MS JARMIN

Respondent:

MR ELSTONE

File Number:

ADC 3605 of 2015

Judgment of:

Judge Young

Hearing date:

13, 14, 15, 16, 17 , 22 and 23 August 2018

Date of Last Submission:

23 August 2018

Delivered at:

Darwin

Delivered on:

21 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr McQuade of Counsel

Solicitors for the Applicant:

Daniel Johns Lawyers

Counsel for the Respondent:

Ms Spence of Counsel

Solicitors for the Respondent:

Adelaide Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Du Barry of Counsel

Solicitors for the Independent Children’s Lawyer:

The Family Law Project

ORDERS

Parental responsibility

The father and the mother are to have equal shared parental responsibility for the child [X] born 2011.

Live with orders

During the school term the child is to live with the father.
The child is to spend time with the mother as agreed and failing agreement, as follows:
a)   During school terms, each alternate week from after school on Thursday to before school on Monday or, if Monday is a public holiday, to before school Tuesday, commencing Thursday 18 October 2018.
b)     During school holiday periods, for one half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods, commencing in the 2018 Christmas school holiday.
c)     For half of the Christmas school holiday period, such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
d)     For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 9 AM on the first day after the school term ceases and changeovers shall occur at 6 PM on the day in the middle of the school holiday period.
e)     In the event the school holidays consist of an uneven number of days, the parent who has the care of the child for the second half of the school holiday will have care of the child for an additional day at the end of the holiday.
f)   Such other time as may be agreed between the parties.
For the years when the Easter holiday does not coincide with the school holidays, the child is to live with the mother in…

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 JARMIN & ELSTONE (No.3)

Details

AGLC: JARMIN & ELSTONE (No.3) [2018] FCCA 2724
Case: [2018] FCCA 2724
Decision Date: 21 September 2018

CaseChat Overview and Summary

This matter concerned an application for parenting orders in relation to a child born in 2011. The proceedings were before Judge Young.

The court was required to determine the nature of parental responsibility and the living arrangements for the child, including the division of time between the parents during school terms, school holidays, and for specific occasions of significance. The court also considered an application by the father concerning contravention of previous orders.

Judge Young made orders for equal shared parental responsibility. The child was ordered to live with the father during school terms. During school holidays, the child was to spend time with the mother for one half of the April, July, and September school holidays, and half of the Christmas school holidays, with specific provisions for agreement and default arrangements. Further orders addressed the division of time for Easter holidays and other occasions of special significance, including Christmas Eve, Christmas Day, and Boxing Day, with specific arrangements for even and odd-numbered years. The parties were granted liberty to apply within 14 days for further orders regarding special occasions and generally. The father's contravention application was referred to a Registrar.

Orders

Orders of the court

Parental responsibility

The father and the mother are to have equal shared parental responsibility for the child [X] born 2011.

Live with orders

During the school term the child is to live with the father.

The child is to spend time with the mother as agreed and failing agreement, as follows:

a) During school terms, each alternate week from after school on Thursday to before school on Monday or, if Monday is a public holiday, to before school Tuesday, commencing Thursday 18 October 2018.

b) During school holiday periods, for one half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods, commencing in the 2018 Christmas school holiday.

c) For half of the Christmas school holiday period, such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.

d) For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 9 AM on the first day after the school term ceases and changeovers shall occur at 6 PM on the day in the middle of the school holiday period.

e) In the event the school holidays consist of an uneven number of days, the parent who has the care of the child for the second half of the school holiday will have care of the child for an additional day at the end of the holiday.

f) Such other time as may be agreed between the parties.

For the years when the Easter holiday does not coincide with the school holidays, the child is to live with the mother in the first year and each alternate year thereafter and the child is to live with the father in the second year and each alternate year thereafter.

Occasions and events of special significance

For Christmas, notwithstanding any other order:

a) The father shall have care of the child from 2 PM on Christmas Eve until 2 PM on Christmas Day in even numbered years and from 2 PM on Christmas Day until 2 PM Boxing Day in odd numbered years.

b) The mother shall have care of the child from 2 PM on Christmas Eve until 2 PM On Christmas Day in odd numbered years and from 2 PM on Christmas Day until 2 PM Boxing Day in even numbered years.

The parties are to have liberty to apply within 14 days in respect of further orders about occasions and events of special significance including Mother’s Day, Father’s Day, the child’s birthday and the parents birthdays.

The parties are to have liberty to apply generally in respect of these orders within 14 days.

The father’s contravention application is referred to a Registrar for further consideration on a date to be advised.

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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