LAMBERT & ADAMSON (No.2) - [2013] FCCA 276

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBERT & ADAMSON (No.2)

[2013] FCCA 276

Catchwords:
FAMILY LAW – Parenting – parental responsibility – whether children should live with mother or father – spend time arrangements contingent upon residence outcome – acrimonious parental relationship – children from Aboriginal and (omitted) cultures.

Legislation:
Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
Lambert & Adamson [2011] FMCAfam 1116
McCall & Clark [2009] FamCAFC 92

Applicant:

MS LAMBERT

Respondent:

MR ADAMSON

File Number:

PAC 322 of 2009

Judgment of:

Judge Monahan

Hearing dates:

2, 3 and 4 April 2012; 30 July 2012

Date of Last Submission:

2 May 2013

Delivered at:

Sydney

Delivered on:

31 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Dignan & Hanrahan

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Legal Aid NSW

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Solicitors for the Independent Children’s Lawyer:

Ross A Clarke & Associates

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for X, born (omitted) 2007, and Y, born (omitted) 2009, (“the children”).
Subject to paragraph 4 herein, the children live with the father.
The father and the children remain living with, and in the home of, the paternal grandmother and the father ensure the children sleep in their own bedroom at the paternal grandmother’s home.
The children spend substantial and significant time with the mother as agreed between the parties or, failing agreement, as follows:
(a)during NSW gazetted school terms each alternate weekend commencing on the first Friday in each school term, on Friday from after school (or 3:00pm if a non-school day) until Sunday at 5:00pm (or until Monday at 5:00pm if any Monday is a non-school day);
(b)during NSW gazetted school holidays each year:
(i)at the end of Terms 1 and 3, for one half of each school holiday period as agreed by the parties or failing agreement, for the first half of the holiday period;
(ii)at the end of Term 2, for the whole of the school holiday period; and
(iii)at the end of Term 4, and subject to paragraph 6(c) herein, for one half of the long summer school holiday period as agreed by the parties or failing agreement, for the first half in years ending in an even number and for the second half in years ending in an odd number;
and for the sake of clarity, paragraph 5(a) herein is suspended during NSW gazetted school holidays and recommences on the first Friday of each NSW gazetted school term.
(c)in the event that the children are not spending time with the mother on their birthdays, such time as may be agreed by the parties or, failing agreement, on the birthday of each child from 10:00am until 3:00pm on non-school days and from after school until 6:00pm on school days;
(d)in the event that the children are…

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 LAMBERT & ADAMSON (No.2)

Details

AGLC: LAMBERT & ADAMSON (No.2) [2013] FCCA 276
Case: [2013] FCCA 276
Decision Date: 31 July 2013

CaseChat Overview and Summary

This case concerned parenting orders made by Judge Monahan regarding the children X and Y. The dispute involved the arrangements for the children's living arrangements, time spent with each parent, and related matters.

The court was required to determine the specific orders concerning equal shared parental responsibility, the children's primary residence, the quantum and nature of time the children would spend with each parent, and various ancillary matters including communication, school involvement, and restrictions on parental conduct. The court also considered the discharge of previous parenting orders and the appointment of an Independent Children's Lawyer.

Judge Monahan discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with the father, who was to reside with the paternal grandmother, ensuring the children slept in their own bedrooms. The mother was to spend substantial and significant time with the children, with detailed provisions for school terms, holidays, and birthdays, including specific arrangements for Father's Day, Mother's Day, and Christmas. The orders also stipulated how changeovers were to occur, facilitated communication between parents and children, and set out expectations for parental conduct, including prohibitions on drug use, disparaging remarks, and physical discipline. The parties were also ordered to attend a post-separation parenting program.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties have equal shared parental responsibility for X, born (omitted) 2007, and Y, born (omitted) 2009, (“the children”).

Subject to paragraph 4 herein, the children live with the father.

The father and the children remain living with, and in the home of, the paternal grandmother and the father ensure the children sleep in their own bedroom at the paternal grandmother’s home.

The children spend substantial and significant time with the mother as agreed between the parties or, failing agreement, as follows:

(a) during NSW gazetted school terms each alternate weekend commencing on the first Friday in each school term, on Friday from after school (or 3:00pm if a non-school day) until Sunday at 5:00pm (or until Monday at 5:00pm if any Monday is a non-school day);

(b) during NSW gazetted school holidays each year:

(i) at the end of Terms 1 and 3, for one half of each school holiday period as agreed by the parties or failing agreement, for the first half of the holiday period;

(ii) at the end of Term 2, for the whole of the school holiday period; and

(iii) at the end of Term 4, and subject to paragraph 6(c) herein, for one half of the long summer school holiday period as agreed by the parties or failing agreement, for the first half in years ending in an even number and for the second half in years ending in an odd number;

and for the sake of clarity, paragraph 5(a) herein is suspended during NSW gazetted school holidays and recommences on the first Friday of each NSW gazetted school term.

(c) in the event that the children are not spending time with the mother on their birthdays, such time as may be agreed by the parties or, failing agreement, on the birthday of each child from 10:00am until 3:00pm on non-school days and from after school until 6:00pm on school days;

(d) in the event that the children are not spending time with the mother on her birthday, such time as may be agreed by the parties or failing agreement, on that day from 10:00am until 5:00pm on non-school days and from after school until 6:00pm on school days.

Notwithstanding any other order herein contained and unless otherwise agreed by the parties:

(a) in the event that the children are spending time with the mother on the weekend which includes Father’s Day the time with the mother on that weekend conclude at 5:00pm on Saturday;

(b) in the event that the children are living with the father on the weekend which includes Mother’s Day, the children spend time with the mother from 5:00pm on Saturday until 5:00pm on Sunday of that weekend;

(c) the children spend time with the mother from 5:00pm on 24 December 2013 until 5:00pm on 25 December 2013 and again from 5:00pm on 24 December 2015 until 5:00pm on 25 December 2015; and

(d) the children spend time with the father from 5:00pm on 24 December 2014 until 5:00pm on 25 December 2014;

(e) in the event that the children are spending time with the mother during any (omitted) holy periods, then the time with the mother be suspended as agreed, and failing agreement, the father may, not more than once in any calendar year, give one month’s written notice to the mother seeking to spend time with the children on one specified (omitted) holy day (“the nominated holy day”), and in that event, such time be suspended from 5:00pm on the evening before the nominated holy day and such time resume, if applicable, at 5:00pm on the nominated holy day.

For the purposes of paragraphs 5 and 6 herein, and subject to paragraph 9 herein, all changeovers occur at a suitable public place as agreed between the parties, or failing agreement, at a contact centre as agreed between the parties or, failing agreement, a contact centre as nominated by the Independent Children’s Lawyer.

For the purpose of paragraph 7 herein, where changeover is effected at a suitable public place as agreed and:

(a) where the father is unable to effect changeover, the father may, on reasonable notice being given to the mother, nominate that a suitable third party, such as the paternal grandmother, effect changeover; and

(b) the father (or his nominee) must immediately withdraw once the children come into the mother’s care.

The parties each be restrained from effecting changeover at the residence of either party or allowing any third party to effect changeover at the residence of either party.

10.

The parties each:

(a) have and facilitate reasonable telephone communication with the children when they are not in their care as agreed or, failing agreement, the mother may telephone the children between 5:30pm and 6:00pm on Tuesdays and Thursdays when the children are living with the father and the father may telephone the children between 5:30pm and 6:00pm on Mondays and Thursdays when the children are spending time with the mother.

(b) keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;

(c) do all such acts and things and sign all documents necessary for each of them to receive all school notices, information newsletters, school reports and school photographs regarding the child directly from the school;

(d) advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;

(e) authorise any medical practitioner, hospital or medical practice at which the child may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements; and

(f) reasonably encourage and facilitate the children participating in any events, gatherings or activities relevant to their Aboriginal heritage as the mother may advise.

11.

Each party be entitled to attend all pre-school, school and extra-curricular activities involving the children, including:

(a) sporting fixtures;

(b) extra-curricular activities that allow for parental attendance;

(c) pre-school and school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.

12.

The parent who has care of the children on the day of any activity referred to in paragraph 11 herein be responsible for the children’s day to day care at such activity and the transportation of the children to and from the activity.

13.

If either parent receives an invitation for either child to attend or participate in a social activity which will take place when the children will be living with or spending time with the other parent then the parent who has received the invitation shall provide the original or a copy of the invitation to the other parent as soon as practicable so that the other parent can reply to the invitation for the child.

14.

Subject to paragraph 15 herein, both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the father and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled (“the communication book”).

15.

The parties each be restrained from writing anything in the communication book which is not related to the children and from using offensive, discourteous or derogatory language in the book.

16.

Each party be restrained from:

(a) using or being affected by any illicit drug or non-prescribed medication whilst the children are in their care;

(b) making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to either of the children or in the presence or hearing of either of the children, with such order to include verbal, written or electronic means including email and text message.

(c) allowing any other person or persons to make any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party to either of the children or in the presence or hearing of either of the children, such order to include verbal, written or electronic means including email or text message.

(d) physically disciplining the children, or from smacking, hitting, pinching or pushing the children for any reason; and

(e) making any threat to either of the children or from otherwise saying or doing anything in the hearing or presence of either of the children which either of the children might find intimidating or threatening.

17.

The mother be restrained from allowing Mr M to attend any occasion where the father is likely to be present with the children, including changeovers.

18.

In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.

19.

Pursuant to s.13C of the Family Law Act 1975 the parties:

(a) attend and complete, as soon as practicable, a post separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, as recommended by the Information Referrals Officer of the Sydney Family Relationships Centre;

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

(d) provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor.

20.

Subject to paragraph 7 herein, the appointment of the Independent Children’s Lawyer be discharged.

21.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and those 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.