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 | of | 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…
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CaseChat Overview and Summary
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
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
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