Lewis and Hing - [2011] FamCA 30

FAMILY COURT OF AUSTRALIA

LEWIS & HING

[2011] FamCA 30

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT:

Ms Lewis

RESPONDENT:

Mr Hing

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYF

3270

2005

DATE DELIVERED:

31 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

7-8 October 2010

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling,

Legal Aid NSW

Orders

That the mother and father shall have equal shared parental responsibility for K born … May 2005.
That the said child shall reside with the mother and spend the following time with the father:-
(a)       When the father is not employed as a shift worker:
(i)during school term from 4.00pm on Friday to 5.00pm on Sunday or 5.00pm on Monday on a long weekend of each alternate weekend, except during the Little Athletics season if the child attends Little Athletics when the time shall commence at 8.00am on Saturday; and,
(ii)during school term on the Monday following each weekend when she does not spend time with the father from 4.00pm to 8.00pm.
(b)      When the father is employed as a shift worker:
(i)during school term from 4.00pm on Friday to 5.00pm Sunday or 5.00pm on Monday on a long weekend, except in the Little Athletics season if the child attends Little Athletics when time shall commence at 8.00am on Saturday, on three (3) weekends in every six (6) weeks during school term with the first cycle of six (6) weeks to commence on the first day of first term in each year and when school holidays intervene in a six (6) week cycle, that cycle is to continue in the next school term with each of the three (3) weekends in each six (6) weeks to be nominated by the father by email to the mother or otherwise in writing sent by him to the mother within 48 hours of the father’s roster being published in respect of any weekend he nominates provided that each such weekend shall not include the weekend which Mother’s Day falls or any weekend on which the mother’s birthday falls on a Friday, Saturday or Sunday, or a Monday on a long weekend.
(ii)during school term on the Friday prior to each weekend or the Monday or Tuesday following each weekend when the child does not spend time with the father from 4.00pm to 8.00pm provided the father nominates the day by email or otherwise in writing addressed to the mother sent by him not less than forty-eight (48) hours after father’s roster in respect of the day or days he nominates is published provided such day is not the mother’s birthday.
(c)(i)        On the father’s birthday and on Father’s Day when either falls on a weekend or his birthday falls on a public holiday on which the father will not otherwise pursuant to these orders be spending time with the child from 5.00pm…

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 Lewis and Hing

Details

AGLC: Lewis and Hing [2011] FamCA 30
Case: [2011] FamCA 30
Decision Date: 31 January 2011

CaseChat Overview and Summary

This matter concerned an application by the mother and father regarding their child, K, born in May 2005. The court was required to make orders concerning K's residence, time spent with each parent, and parental responsibility.

The court was tasked with determining the specific arrangements for K's living arrangements and time with each parent, considering the father's shift work and various special occasions. Additionally, the court had to address issues relating to the child's surname, international travel, communication between parents and the child, and the exchange of information regarding K's education and medical care.

Justice Cohen ordered that the mother and father have equal shared parental responsibility for K. The child is to reside with the mother, with detailed provisions outlining the time K will spend with the father, including during school terms, school holidays, and on specific birthdays and public holidays. The orders also specify limitations on telephone contact between the non-resident parent and the child, and importantly, restrain the mother from causing or permitting the child to use the surname Lewis or any variation thereof, mandating that the child's surname be Hing. Further orders address the removal of the child from watch lists, notification of addresses, parental relocation, international travel, and the sharing of information concerning K's health and education.

Orders

Orders of the court

That the mother and father shall have equal shared parental responsibility for K born … May 2005.

That the said child shall reside with the mother and spend the following time with the father:-

(a) When the father is not employed as a shift worker:

(i) during school term from 4.00pm on Friday to 5.00pm on Sunday or 5.00pm on Monday on a long weekend of each alternate weekend, except during the Little Athletics season if the child attends Little Athletics when the time shall commence at 8.00am on Saturday; and,

(ii) during school term on the Monday following each weekend when she does not spend time with the father from 4.00pm to 8.00pm.

(b) When the father is employed as a shift worker:

(i) during school term from 4.00pm on Friday to 5.00pm Sunday or 5.00pm on Monday on a long weekend, except in the Little Athletics season if the child attends Little Athletics when time shall commence at 8.00am on Saturday, on three (3) weekends in every six (6) weeks during school term with the first cycle of six (6) weeks to commence on the first day of first term in each year and when school holidays intervene in a six (6) week cycle, that cycle is to continue in the next school term with each of the three (3) weekends in each six (6) weeks to be nominated by the father by email to the mother or otherwise in writing sent by him to the mother within 48 hours of the father’s roster being published in respect of any weekend he nominates provided that each such weekend shall not include the weekend which Mother’s Day falls or any weekend on which the mother’s birthday falls on a Friday, Saturday or Sunday, or a Monday on a long weekend.

(ii) during school term on the Friday prior to each weekend or the Monday or Tuesday following each weekend when the child does not spend time with the father from 4.00pm to 8.00pm provided the father nominates the day by email or otherwise in writing addressed to the mother sent by him not less than forty-eight (48) hours after father’s roster in respect of the day or days he nominates is published provided such day is not the mother’s birthday.

(c) (i) On the father’s birthday and on Father’s Day when either falls on a weekend or his birthday falls on a public holiday on which the father will not otherwise pursuant to these orders be spending time with the child from 5.00pm on the eve of each such day to 5.00pm on the father’s birthday or Father’s Day provided that in each instance the father informs the mother by email or otherwise in writing sent by him not less than one (1) month prior to that day that he intends to spend time with the child on that day; and,

(ii) on the father’s birthday if it falls on an ordinary weekday from 4.00pm to 8.00pm provided the father notifies the mother by email or otherwise in writing sent by him that he intends to spend time with the child on that day not less than one month prior to his birthday.

(d) From 4.00pm on the day prior to Chinese New Year’s Day to 4.00pm on Chinese New Year’s Day unless Chinese New Year’s Day is on a Friday and in that instance in 2012 and thereafter from 4.00pm on the prior Thursday to 5.00pm on the following Sunday.

(e) During school vacations:

(i) in each short vacation in 2011 on four (4) days and nights from 4.00pm on the last day of the school term to 5.00pm on the fifth day immediately thereafter.

(ii) in the Christmas school vacation 2011-12 on seven (7) days and nights from 4.00pm on the first day chosen by the father to 5.00pm on the eighth day immediately thereafter provided that the period chosen shall not commence prior to 2 January and end after the last Friday of the Christmas vacation period and the father gives the mother written notice of the period he chooses by email or otherwise in writing sent by him not less than two (2) months prior to the first day of that period; and,

(iii) in each of the three (3) other school vacations in 2012 and each year thereafter from 4.00pm on the last day of the school term to 5.00pm on the eighth day immediately thereafter; and,

(iv) in the Christmas school vacation in 2012-13 and each year thereafter from 4.00pm on 2 January to 5.00pm on 23 January.

(f) That the child is to spend from 4.00pm on the day before the mother’s birthday and before Mother’s Day to 9.00am on the day after the mother’s birthday and the day after Mother’s Day with the mother and if any period nominated by the father includes these periods pursuant to any other provision herein this provision shall prevail over the period chosen by the father.

(g) That for the purpose of the implementation of the orders herein the father shall in each cycle of six (6) periods of any length when he spends time with the child collect her from and deliver her to the mother’s home on the first five (5) such periods and on the sixth such period the mother shall deliver the child to and collect her from the father’s home.

That when the child is residing with or spending time with a parent the other parent shall not telephone her more than once on each weekend including long weekends and more than twice in each weekday period irrespective of its length with the exception that during the time the father spends with the child pursuant to order 2(b)(ii), and on his birthday and on Father’s Day and the time the mother spends with the child on the mother’s birthday and on Mother’s Day there shall be no telephone contact between the child and the parent not having her immediate care.

That the mother is hereby restrained from causing or permitting the child to use or be known or identified by the inclusion of the name Lewis in her names whether as a first name, middle name or surname and whether hyphenated or not and/or from causing or permitting the child to use or be known or identified by a surname other than Hing.

That the Australian Federal Police forthwith shall take all steps necessary to remove K born … May 2005 from the watch list kept at airports and other ports of entry to and exit from Australia.

That the mother and the father shall each notify the other by email or otherwise in writing of their current address, landline telephone number, mobile telephone number, email address, facsimile number and postal address and within 7 days of any change in any such details of the details of that change.

That the mother shall give the father no less than two (2) months notice by email or otherwise in writing of her intention to move the child’s home outside the Sydney Metropolitan Area and of the area to which she proposes to move it.

That each parent shall be entitled to remove the child temporarily from Australia during any period he or she is to spend with her pursuant to these orders provided that the parent who wishes to take the child overseas provides the other with a copy of their itinerary, copies of all air and sea voyage tickets and all overseas contact telephone numbers for the child and himself or herself not less than 1 month before the departure date.

That the mother and the father have equal shared parental responsibility for decisions affecting the long term care, welfare and development of the said child.

10.

That during any period during which the child is in the principal care of a parent, in the event of the child being hospitalised or receiving medical attention, that parent shall notify the other as soon as practicable of the medical practitioner, medical centre or hospital involved and at that time provide details of the illness, injury, the treating doctor and the prognosis for and treatment of the child (if known).

11.

That each parent shall ensure that the other is kept informed as soon as is reasonably practicable of:-

(a) any medical problems or illness suffered by the child whilst in his or her care; and,

(b) any medication that has been prescribed for the child or over the counter medication administered to the child whilst in his or her care.

12.

That the Mother and Father consult in relation to the attendance of the child on any medical practitioner, dentist, optometrist, psychologist, counsellor, speech therapist or other therapist for the child and in the event that the child is referred to any such person:

(a) the parent obtaining the appointment shall inform the other parent by email or otherwise in writing as soon as practicable of the time and date of appointment; and,

(b) that parent shall when the initial appointment is made authorise the relevant person to discuss all matters relating to the child with the other parent; and,

(c) that parent shall do all acts and things necessary and shall ensure that the other parent is permitted and able to attend at such appointment and is provided with copies of any test results, letters of referral, reports and letters received from and by that person.

13.

That the mother within fourteen (14) days of the date of these orders and at the time of the child’s subsequent enrolment at any school shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forwards directly to the father:-

(a) copies of all her school reports and merit cards; and,

(b) any written material pertaining to her academic and extra curricular activities; and,

(d) copies of all order forms for school photographs of the child.

14.

That both the mother and father may attend any events involving the child whether curricular or extra-curricular that parents are invited to such as special days, prize days, sports carnivals, concerts, parent teacher interviews and enrolment interviews.

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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