LANSDOWNE & SHANNON - [2014] FamCA 331

FAMILY COURT OF AUSTRALIA

LANSDOWNE & SHANNON

[2014] FamCA 331

FAMILY LAW – CHILDREN – Best interests – Where a significant issue in the proceedings is parental responsibility – Where the court found that the father has engaged in family violence – Where pursuant to s 61DA(2) the presumption that it is in the best interests of the child for there to be equal shared parental responsibility does not apply – Where, notwithstanding that the presumption does not apply, there may still be an order for equal shared parental responsibility if that is in the best interests of the children – Whether granting equal shared parental responsibility would be in the best interests of the children – Where the court was not satisfied that the family violence that has occurred would prevent there being equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Dundas & Blake [2013] FamCAFC 133

APPLICANT:

Ms Lansdowne

RESPONDENT:

Mr Shannon

FILE NUMBER:

SYC

370

2013

DATE DELIVERED:

22 May 2014
(As amended pursuant to rule 17.02 of the Family Law Rules 2004 on 4 July 2014)

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

10-13 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Clifford
SOLICITOR FOR THE RESPONDENT:	Hamish Cummings Lawyers

Orders

That the parties shall have equal shared parental responsibility for the children X born … 2004 and Y born … 2006 (‘the children’).
That the children shall live with the mother.
That the father shall forthwith take all necessary steps to enrol in, and to complete the Relationships Australia course ‘Taking Responsibility: A Course for Men’.
That commencing on the second weekend after the making of these orders the children shall spend time with the father as follows:
(a)During school terms in a fortnightly cycle as follows:
(i)Each alternate weekend from after the children’s Saturday morning activities when the father will collect the children from BB Park, Suburb CC to the commencement of the next school day; and
(ii)In the following week commencing each alternate Tuesday from after school until before school the next day.
(b)Then upon the father enrolling in and successfully completing the Relationships Australia course ‘Taking Responsibility: A Course for Men’ each alternate week during school terms, from after school or 3pm Friday until before school the following Wednesday.
That in school holiday periods the children shall spend time with the father as follows:
(a)In the short June 2014 school holidays from 9am on the first Sunday until 7pm the following Friday;
(b)That until the father enrols in and successfully completes the Relationships Australia course ‘Taking Responsibility: A Course for Men’ the father shall continue to spend time with the children in the short school holidays from 9am on the first Sunday until 7pm the following Friday.
(c)Then upon the father enrolling in and successfully completing the Relationships Australia course ‘Taking Responsibility: A Course for…

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.

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Details

AGLC: LANSDOWNE & SHANNON [2014] FamCA 331
Case: [2014] FamCA 331
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Lansdowne (the applicant mother) and Mr Shannon (the respondent father) were involved in parenting proceedings concerning their two children, X and Y. A significant issue in dispute was parental responsibility, with the mother seeking sole parental responsibility and the father seeking equal shared parental responsibility. The court was required to determine whether an order for equal shared parental responsibility would be in the best interests of the children, notwithstanding findings of family violence by the father.

The court was tasked with determining the extent of parental responsibility and the specific time the children should spend with each parent. Central to the determination was the application of section 61DA(2) of the *Family Law Act 1975* (Cth), which outlines a presumption that equal shared parental responsibility is in a child's best interests, and the circumstances under which this presumption does not apply due to findings of family violence. The court had to consider whether, even if the presumption did not apply, an order for equal shared parental responsibility could still be made if it was deemed to be in the children's best interests.

The court found that the father had engaged in family violence, which meant the presumption under s 61DA(2) of the *Family Law Act 1975* (Cth) did not apply. However, the court was not satisfied that the family violence that had occurred would prevent the possibility of equal shared parental responsibility. Applying the overarching principle of the children's best interests, the court ultimately made orders for equal shared parental responsibility. The orders detailed specific arrangements for the children to live with the mother and spend time with the father, including a graduated increase in the father's time with the children contingent on his completion of a specific course. The orders also included provisions for communication between parents and children, notification of medical matters, and restrictions on denigrating the other parent.

Orders