Morley and Risdale - [2018] FamCA 940

FAMILY COURT OF AUSTRALIA

MORLEY & RISDALE

[2018] FamCA 940

FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at Court event and Notice of Ceasing to Act filed by his solicitors – Where appropriate that matter proceed on an undefended basis – Where the mother suffers from post-traumatic stress disorder – Where the child has sensory processing disorder and autism – Where consideration of child’s best interests – Where orders are made as sought by the mother and supported by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode and Goode (2006) FLC 93-286
In the Marriage of George and Radford (1976) FLC 90-060
Jarrah & Fadel [2014] FamCAFC 14
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
Reynolds & Sherman [2016] FamCAFC 240

APPLICANT:

Mr Morley

RESPONDENT:

Ms Risdale

INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

FILE NUMBER:

PAC

4259

2013

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

10 September 2018

REPRESENTATION

THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Ghobrial Legal

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That mother have sole parental responsibility for the child X born … 2013 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as agreed and in default of agreement as follows:
(a)      Each alternate Saturday from 9.30 am to 1.30 pm;
(b)      Commencing in 2019
(i)Each alternate Saturday from 9.30 am to 2.30 pm;
(c)      Commencing in 2020
(i)Each alternate Saturday from 9.30 am to 3.30 pm;
(d)      Commencing in 2021
(i)Each alternate Saturday from 9.30 am to 4.30 pm;
(e)      Commencing in 2022
(i)Each alternate Saturday from 9.30 am to 4.30 pm;
(ii)Each other Saturday from 10.00 am Saturday to 10.00 am Sunday;
(f)       Commencing in 2023
(i)Each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.
Specific occasions:
(a)That the child’s time with the father is suspended on the Mother’s Day weekend;
(b)That on Father’s Day the child will spend time with the father for a period of three hours;
(c)That if the father’s birthday falls on a school day the child will spend two hours with the father after school at a time agreed between the parties;
(d)That if the father’s birthday falls on a weekend the child will spend time with the father for a period of three hours if the child is not, otherwise, spending time with him;
(e) On Easter Sunday the child shall spend three hours with the father;
(f) On Christmas Day the child shall spend three hours with the father;
(g)During Terms 1, 2 and 3 of the NSW gazetted school holidays the child’s time with the father shall be suspended for the first week of each holiday period;
(h)During…

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 Morley and Risdale

Details

AGLC: Morley and Risdale [2018] FamCA 940
Case: [2018] FamCA 940
Decision Date: 16 November 2018

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2013, with the proceedings brought before Foster J. The dispute revolved around the arrangements for the child's residence and time spent with each parent.

The court was required to determine the primary residence of the child and the specific terms of the time the child would spend with the father, including the duration and frequency of contact, and arrangements for special occasions and school holidays.

Foster J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The court then detailed a phased approach to the child's time with the father, commencing in 2019 and progressively increasing the duration of weekend contact. Specific provisions were made for Father's Day, the father's birthday, Easter Sunday, and Christmas Day, as well as suspensions of contact during certain school holiday periods. The orders also stipulated that both parents were to ensure the child's full participation in parties and sporting events.

Orders

Orders of the court

That mother have sole parental responsibility for the child X born … 2013 (“the child”).

That the child shall live with the mother.

That the child shall spend time with the father as agreed and in default of agreement as follows:

(a) Each alternate Saturday from 9.30 am to 1.30 pm;

(b) Commencing in 2019

(i) Each alternate Saturday from 9.30 am to 2.30 pm;

(i) Each alternate Saturday from 9.30 am to 3.30 pm;

(d) Commencing in 2021

(i) Each alternate Saturday from 9.30 am to 4.30 pm;

(e) Commencing in 2022

(i) Each alternate Saturday from 9.30 am to 4.30 pm;

(ii) Each other Saturday from 10.00 am Saturday to 10.00 am Sunday;

(f) Commencing in 2023

(i) Each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.

Specific occasions:

(a) That the child’s time with the father is suspended on the Mother’s Day weekend;

(b) That on Father’s Day the child will spend time with the father for a period of three hours;

(c) That if the father’s birthday falls on a school day the child will spend two hours with the father after school at a time agreed between the parties;

(d) That if the father’s birthday falls on a weekend the child will spend time with the father for a period of three hours if the child is not, otherwise, spending time with him;

(e) On Easter Sunday the child shall spend three hours with the father;

(f) On Christmas Day the child shall spend three hours with the father;

(g) During Terms 1, 2 and 3 of the NSW gazetted school holidays the child’s time with the father shall be suspended for the first week of each holiday period;

(h) During the Christmas school holiday period the child’s time with the father shall be suspended for the first two weeks immediately after Christmas Day and up until 8 January each year.

That if the child is invited to parties or has sporting events both parties are to ensure the child has the opportunity for full participation with the party who is spending time with the child being responsible to assist the child in attending these events.

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

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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