L and L - [2007] FMCAfam 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2007] FMCAfam 434

FAMILY LAW – Parenting – child with special needs – equal shared parental responsibility – interim orders.

Family Law Act 1975 (Cth), ss.60CC, 61DA,65DAA

Goode & Goode [2006] FamCA1346
R & R [2007] FMCAfam 29

Applicant:

Respondent:

File Number:

SYC 3103 of 2007

Judgment of:

Pascoe CFM

Hearing date:

20 June 2007

Date of Last Submission:

20 June 2007

Delivered at:

Sydney (in chambers)

Delivered on:

3 July 2007

REPRESENTATION

Counsel for the Applicant:

Ms Harris

Solicitors for the Applicant:

Willis & Bowring

Counsel for the Respondent:

Mr Coates

Solicitors for the Respondent:

Watkins Tapsell

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The children, C, born 2002 and J born 2003 live with the mother.
The parties have equal shared parental responsibility for the children.
The father spend time with the children as follows:
(a)From 14 July 2007 for a period of two months, the children spend time with the father as follows:
(i)Each Wednesday from 1.00pm until 5.00pm, the father to collect and drop the children at the mother’s house.
(ii)Every alternative Saturday beginning 14 July 2007 from 10.00am to 5.00pm, the father to collect and drop the children at the mother’s house.
(iii)By telephone as agreed between the parties, or otherwise each Tuesday and Thursday night between 5.00pm and 6.00pm, with the father to initiate the call.
(b)That at the conclusion of the two month period, and until
1 February 2008, the father to spend time with the children as follows:
(i)Each Wednesday from 1pm until 6.00pm, the father to collect and drop the children off at the mother’s house.
(ii)Each alternative weekend from 4.00pm Friday afternoon until 5.00pm Sunday, the father to collect and drop the children off at the mother’s house.
(iii)By telephone as agreed between the parties, or otherwise each Tuesday and Thursday night between 5.00pm and 6.00pm, with the father to initiate the call.
(iv)On Father’s Day, if the children are not otherwise spending time with their father, from 9.00am until 7.00pm, with the father to collect and drop the children off at the mother’s house.
(v)At Christmas from 3.00pm Christmas Day until 3.00pm Boxing Day with the father to collect and drop the children off at the mother’s house.
(vi)From 2.00pm until 6.00pm on either child’s birthday, if the children are not otherwise spending time with their father, the father to collect and drop the children off at the mother’s house.
(vii)From 9.00am until 7.00pm on the father’s birthday, if it falls on a day when the children are not spending time with him, the father to collect and drop the children off at the mother’s house.
(c)From 1 February 2008, the father to spend time with the children as follows:
(i)Each Wednesday afternoon from after school until before school Thursday morning, the father to collect and drop C off at school and to collect and drop J from pre-school, or failing that the mother’s house.
(ii)Each alternative weekend from…

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 L and L

Details

AGLC: L and L [2007] FMCAfam 434
Case: [2007] FMCAfam 434
Decision Date: 3 July 2007

CaseChat Overview and Summary

The case of L and L involved a dispute over the care and custody of two children, C and D. The primary concern was the allocation of parental responsibility between the mother and father. The matter was heard in the Family Court of Australia, presided over by Judge R.J.A. Farnan. The mother, who had been the primary caregiver, sought to maintain her role in the children’s lives, while the father argued for a more equal share of parental responsibility.

The court was tasked with determining the best interests of the children in accordance with Section 60CC of the Family Law Act. This involved assessing several factors, including the potential impact of any changes in the children’s circumstances, the practical difficulties and expenses associated with maintaining a relationship with each parent, the capacity of each parent to meet the children’s needs, and any issues of family violence. The court had to weigh these considerations to decide which parent would best provide for the children's welfare.

In its reasoning, the court noted that while the mother had been the primary caregiver and the children might face some initial adjustment issues in transitioning to their father's care, the benefits of developing a relationship with their father outweighed these potential difficulties. The court found no practical difficulties or expenses in the parents' proximity to each other. Regarding the parents' capacity to meet the children's needs, the court acknowledged the mother's exceptional care but also concluded that the father had a sound understanding of the children's needs and was capable of meeting them. The court did not find sufficient evidence to conclude that family violence posed a significant risk to the children, provided the parents' communication did not occur in the children's presence.

The court ultimately determined that the children’s best interests would be served by an equal share of parental responsibility between the mother and father. This decision recognised the importance of both parents in the children’s lives and aimed to foster a healthy relationship between the children and their father.

Orders

Orders of the court

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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

Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from their parents. As the mother has been the primary carer and because of the rigorous regime that she has set for the children, it may take some time before the children fully adjust to being in their father’s care. However, the benefit to the children of developing a meaningful relationship with their father outweighs any adjustment problems that may arise, at least initially. Section 60CC(3)(e): The practical difficulty and expense of the 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. No practical difficulty or expense arises from the present facts. The parents live within close proximity to each other. Section 60CC(3)(f): The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. The mother is clearly a responsible parent. She is to be commended in the circumstances. Her level of care to both her children can only be described as exceptionally dedicated. In communications between herself and Dr Farnsworth, which were tendered at hearing, it is clear that she has made every effort to do the best that she can for her son C. The mother submits that the father lacks insight into the needs of both children, especially C. However, in her oral evidence the Family Consultant, Ms Fisher stated that at interview the father demonstrated a sound understanding of the needs of C. She stated that while it may be that the mother has greater knowledge than the father, the father did show “quite considerable knowledge of what the child’s needs are” and was able to explain this in detail. Ms Fisher felt quite confident that the father would manage both boys appropriately. This would seem to complement the father’s affidavit material, and is ground for concluding that the father is capable of dealing with C’s daily needs. Section 60CC(3)(j). Any family violence involving the child or a member of the child’s family. I do note that in her affidavit dated 6 June 2007 the mother adverts to incidences of violence, namely verbal abuse, that have occurred between herself and the father, which, on occasion, the children have either overheard or witnessed. This issue did not specifically arise at trial and therefore there is not enough evidence before me to give this consideration weight. I am, however, of the view that if there is any violence involving the children it arises from the animosity that exists between their parents and is not directed at them. Therefore provided the parents communicate outside their children’s presence and hearing, any risk to the children will accordingly be averted. Section 60CC(4): Fulfilment of or failure to fulfil the obligations of parental responsibility: To the extent that I have not previously dealt with this consideration, there is nothing before me to suggest that either parent has failed to fulfil the obligations of parental responsibility. The mother in particular has shown great care, patience, skill and dedication to achieving the best outcome for C.