Leslie and Dempsey - [2013] FamCA 576

FAMILY COURT OF AUSTRALIA

LESLIE & DEMPSEY

[2013] FamCA 576

FAMILY LAW – CHILDREN – Best interests of a child – Where the proposals substantially differ – Parenting capacity – Where the mother suffers from mental health disorders – Where the father demonstrates similar emotional features to the mother – Where the parties have a poor relationship and poor communication – Where the parents are capable of meeting the physical needs of the children and are better parents separated than together – Whether equal shared parental responsibility is appropriate – Where the parties do not live in geographical proximity to each other – Where the father seeks that the eldest child live with him and the youngest in two years – Where the expert does not support equal or substantial and significant time with the father for both children – Where it is agreed that the youngest child should live mainly with the mother for the medium term and where the expert does not recommend that the child move to live with the father after two years – Where the children should live together and mainly with the mother – Where the youngest child’s time with the father later increase to overnight and block periods to reflect the child’s age and development.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 65DAA, 65DAC
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

McCall & Clark (2009) FLC 93-405
Mazorski & Albright (2007) 37 Fam LR 518
G & C [2006] FamCA 994
Champness & Hanson (2009) FLC 93-407

APPLICANT:

Ms Leslie

RESPONDENT:

Mr Dempsey

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyers

FILE NUMBER:

PAC

4954

2010

DATE DELIVERED:

11 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATE:

20, 21, 22 & 23 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. P Schroder

SOLICITOR FOR THE APPLICANT:

Ms Neilson of Legal Aid NSW Parramatta

SOLICITOR FOR THE RESPONDENT:

James Papas Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gardiner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyers

Orders

(1)The parties shall have equal shared parental responsibility for the children J born … June 2007 and B born … November 2010.
(2)At all times when they are not living with the father pursuant to these orders, J and B shall live with the mother.
(3)J shall live with the father as follows:
(a)from the commencement of these orders until Tuesday 22 January 2013:
(i) each week from 3.30 pm Saturday until 10.00 am the following Tuesday; and,

(b)       from the commencement of the 2013 NSW School Year:
(i)        during school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday commencing the first weekend occurring in Term 1, 2013. In the event that the father does not reside within 30 minutes of the mother’s residence, that time will conclude at 5.30 pm on the intervening Sunday;
(ii)      for one half of…

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 Leslie and Dempsey

Details

AGLC: Leslie and Dempsey [2013] FamCA 576
Case: [2013] FamCA 576
Decision Date

CaseChat Overview and Summary

This case involved parenting proceedings in the Family Court of Australia concerning two boys, J (born June 2007) and B (born November 2010), the children of Ms Leslie (the mother) and Mr Dempsey (the father). The parties separated in October 2010. The central dispute revolved around the parenting capacities of the mother and father, their respective relationships with the children, and their ability to foster a positive relationship between the children and the other parent.

The court was required to determine several key legal issues, including whether equal shared parental responsibility was appropriate given the parties' poor communication and differing proposals for the children's living arrangements. The court also had to consider the mother's mental health disorders and the father's similar emotional features, as well as the expert evidence regarding the children's best interests, particularly concerning the eldest child living with the father and the youngest child's potential move to the father's care in the future. The geographical proximity of the parents was also a relevant factor.

The court's reasoning focused on the paramount consideration of the children's best interests, as mandated by the Family Law Act 1975 (Cth). It acknowledged that while the parents were capable of meeting the children's physical needs, they were better parents separated than together. The court found that the children should live together and mainly with the mother in the medium term. The expert evidence did not support substantial and significant time with the father for both children, nor did it recommend the youngest child move to live with the father after two years. The court also considered the need for the youngest child's time with the father to increase over time to reflect his age and development.

The court ordered that the parties have equal shared parental responsibility for J and B. The children were to live with the mother at all times when not with the father. Specific arrangements were made for J to live with the father on alternate weekends during school terms, for half of each school holiday period, and on specific public holidays, with provisions for telephone contact. For B, the orders initially provided for limited time with the father, increasing to the same arrangements as J from the commencement of the 2014 school year, ensuring both children were with their father at the same time. The orders also included provisions regarding school holiday contact, the father's time being suspended on Mother's Day weekend, and the method of child transfers. Further orders addressed the parties' obligations regarding the children's schooling, health, and behaviour, including prohibitions on speaking negatively about the other parent and the use of physical punishment.

Orders