Lipovic and Sorrel - [2019] FamCA 38

FAMILY COURT OF AUSTRALIA

LIPOVIC & SORREL

[2019] FamCA 38

FAMILY LAW – CHILDREN – Final parenting – Where a non-parent seeks orders to spend time with the child – Where the non-parent stepfather is the father to the child’s half siblings – Where the father has perpetrated family violence against the mother – Where it is the opinion of the expert that it is in the child’s best interests to spend time with the non-parent – Consideration of relevant principles – Where order made for child to spend time with non-parent stepfather.

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

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Lipovic

RESPONDENT:

Ms Sorrel

INDEPENDENT CHILDREN’S LAWYER:

Ms Court

FILE NUMBER:

WOC

2015

DATE DELIVERED:

1 February 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 12 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Wood and Ms Cuppitt of Able Defence Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lee

SOLICITOR FOR THE RESPONDENT:

Ms Kaiti of CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Murphy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

Orders

The child, X born on … 2011 shall spend time with the applicant father, Mr Lipovic as follows:
(a)Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 16 February 2019 until and including the weekend commencing 13 April 2019.
(b)Each alternate weekend during school terms from after school on Friday to 5.00 pm on Sunday commencing 26 April 2019.
(c)From the commencement of the short school holidays at the conclusion of Term 2, 2019 for one half of the short school holidays as agreed in writing with the respondent mother, Ms Sorrel and failing agreement the first half in years ending in an odd number and the second half in years ending in an even number.
(d)During the Christmas school holidays in 2019/2020 for two weeks as agreed with the mother in writing and failing agreement, the last two weeks of the school holidays.
(e)From 2.00 pm Christmas Day to 4.00 pm 30 December each year commencing 25 December 2019.
(f)Such other times that the mother and the applicant father may agree in writing such writing to include SMS or email communication.
That the applicant father’s time with the child is suspended from 9.00 am Christmas Eve to 2.00 pm Christmas Day each year commencing 24 December 2019.
Notwithstanding anything else in these orders:
(a)In the event that these orders provide for the child to spend time with the applicant father on the weekend of Mother’s Day, the applicant father’s time will take place on the following weekend to enable the children to spend the Mother’s…

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 Lipovic and Sorrel

Details

AGLC: Lipovic and Sorrel [2019] FamCA 38
Case: [2019] FamCA 38
Decision Date: 1 February 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Lipovic (the applicant father) for orders regarding the time the child, X, would spend with him, and by Ms Sorrel (the respondent mother). The court was required to determine the specific arrangements for the child's time with each parent, including weekends, school holidays, and special occasions, as well as ancillary orders concerning communication, parental conduct, and the child's welfare.

The court's reasoning focused on establishing a practical and child-focused schedule for time spent with each parent. This involved detailing the frequency and duration of the father's time, including provisions for alternate weekends during school terms and specific arrangements for school holidays. The orders also addressed the sensitive issue of parental communication and conduct, imposing restraints on denigration and requiring notification of significant illness or injury. Furthermore, the court mandated specific actions for the father, including the completion of a course, and outlined procedures for the suspension of his time in certain circumstances related to the child spending time with her biological father.

The final orders established a detailed schedule for the child's time with the applicant father, commencing on 16 February 2019. These orders included provisions for alternate weekends, school holidays, and specific arrangements for Christmas and Mother's Day/Father's Day. The court also made orders regarding changeover locations, parental communication, the prohibition of physical punishment, notification of significant events, and access to school and extracurricular information. By consent, the parties were ordered to pay the costs of the Independent Children's Lawyer and outstanding fees for Dr E.

Orders

Orders of the court

The child, X born on … 2011 shall spend time with the applicant father, Mr Lipovic as follows:

(a) Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 16 February 2019 until and including the weekend commencing 13 April 2019.

(b) Each alternate weekend during school terms from after school on Friday to 5.00 pm on Sunday commencing 26 April 2019.

(c) From the commencement of the short school holidays at the conclusion of Term 2, 2019 for one half of the short school holidays as agreed in writing with the respondent mother, Ms Sorrel and failing agreement the first half in years ending in an odd number and the second half in years ending in an even number.

(d) During the Christmas school holidays in 2019/2020 for two weeks as agreed with the mother in writing and failing agreement, the last two weeks of the school holidays.

(e) From 2.00 pm Christmas Day to 4.00 pm 30 December each year commencing 25 December 2019.

(f) Such other times that the mother and the applicant father may agree in writing such writing to include SMS or email communication.

That the applicant father’s time with the child is suspended from 9.00 am Christmas Eve to 2.00 pm Christmas Day each year commencing 24 December 2019.

Notwithstanding anything else in these orders:

(a) In the event that these orders provide for the child to spend time with the applicant father on the weekend of Mother’s Day, the applicant father’s time will take place on the following weekend to enable the children to spend the Mother’s Day weekend with their mother; and

(b) In the event that Father’s Day falls on a weekend when the child would be with the mother, the child shall spend time with the applicant father on the weekend of Father’s Day in substitution for the following weekend when the child would otherwise be spending time with the applicant father.

That the applicant father is to ensure he takes the child to her sporting activities as they fall due whilst the child is spending time with him.

For the purpose of these orders, changeover shall take place at the child’s school or a location as agreed between the parties or in the absence of agreement McDonald’s Restaurant located at Suburb G at the commencement of the father’s time with the child and at McDonald’s Restaurant at Suburb B at the conclusion of the applicant father’s time with the child.

That for the purposes of calculating one half of a school holiday time the period shall commence on the last day that the child is required to attend school and shall conclude on the first day that the child is required to attend school the following school term (so school holiday periods shall include pupil free days) and if there are an even number of nights in the period, then the first half shall conclude at 5.00 pm on the mid evening (eg if there are 14 nights at 5.00 pm on the seventh evening) and if there are an odd number of nights the first half shall conclude at 5.00 pm on the 15 nights time would conclude at 8.00 pm on the eighth evening in the period.

That the parties shall ensure that the child is able to contact the other by telephone when she is in their respective care if the child expresses a wish to do so.

That both parties are restrained from denigrating or making derogatory comments about the other parent or a member of their household or family in the presence or hearing of the child and shall immediately remove them from the presence or hearing of any third person who does so.

That “Without Admissions” both parties are restrained from using physical punishment or chastisement with the child and shall not permit any third party to do so.

10.

That both parties shall forthwith, or as soon as practicable, advise the other party, in writing, of any significant injury or significant illness that the child suffers whilst in that party’s care including:

(a) The nature of the illness or injury;

(b) Treatment obtained;

(d) Prognosis.

11.

That each party shall provide the other with written notice within seven days of any change to their telephone numbers (including mobile telephone) and email address.

12.

That both parties shall do all acts and things necessary including the giving of all consents to ensure that both are able to access information that would ordinarily be available to parents about the child from her school and extracurricular activity providers.

13.

Both parties are entitled to attend school events involving the children to which parents are normally invited.

14.

Within 14 days of the date of these orders the father shall do all acts and things and sign all documents necessary to enrol in and then complete the ‘Taking Responsibility – a course for men’ conducted by C Group, and:

(a) The father shall provide written notice to the mother of his commencement date for the course required by this Order;

(b) The father shall provide a certificate of completion to the mother with respect to the course required in this Order;

(c) The child’s overnight time with the applicant father in accordance with the above orders not occur until commencement of the course referred to in this order.

15.

That the applicant father’s time with the child as provided shall be suspended on occasions that the child is reasonably spending with her biological father, Mr D provided always that:

16.

The mother shall give to the applicant father not less than three days’ notice that the child will, otherwise, be spending time with the biological father; and

17.

That the child does in fact spend such time with the biological father; and

18.

That such suspension of time shall not occur on two consecutive occasions that the child is otherwise to spend with the applicant father.

Independent Children’s Lawyer’s Costs

19.

By Consent: That the applicant and respondent shall pay to Legal Aid NSW costs of the Independent Children’s Lawyer in the sum of $13,808.00 within 14 days from this date and the applicant and respondent shall do all things necessary to authorise and direct that such payment be made from funds presently held in a controlled money account on their behalf.

20.

By Consent: That the applicant and respondent shall pay to Dr E his outstanding fees in the sum of $2,488.00 within 14 days from this date and the applicant and respondent shall do all things necessary to authorise and direct that such payment be made from funds presently held in a controlled money account on their behalf.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.