Newman and Sables - [2016] FCCA 722

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWMAN & SABLES

[2016] FCCA 722

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – one child aged 3 years – parental responsibility – equal shared parental responsibility – best interests of the child – allegations of family violence – allegations of alcohol abuse – mental health issues.

Legislation:

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

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR NEWMAN

Respondent:

MS SABLES

File Number:

SYC 3874 of 2014

Judgment of:

Judge Scarlett

Hearing date:

6 July 2015

Date of Last Submission:

6 July 2015

Delivered at:

Sydney

Delivered on:

4 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms Boyle

Solicitors for the Applicant:

Abrams Turner Whelan

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

Mills Oakley Lawyers

ORDERS

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.
The Father and the Mother are to have equal shared parental responsibility for the child X born (omitted) 2013.
The child X is to live with the Mother.
The child X is to spend time with the Father from the date of these Orders until 31 December 2016 as follows:
(a)From 8:00 am to 6:30 pm each Tuesday;
(b)From 8:00 am to 6:30 pm each Sunday with the exception of Mother’s Day and the Mother’s birthday being (omitted) 2016; and
(c)From 2:00 pm to 6:30 pm on Christmas Day 2016.
From and after 1 January 2017, the child X is to spend time with the Father as follows:
(a)From 8:00 am to 6:30 pm each Tuesday with the exception of the child’s birthday namely (omitted) 2017 when the Father’s time with the child will conclude at 12:30 pm;
(b)From 8:00 am to 6:30 pm each Thursday;
(c)From 8:00 am to 6:30 pm each Sunday with the exception of Mother’s Day;
(d)From 9:00 am to 2:00 pm on Christmas Day 2017 and all odd numbered years thereafter; and
(e)From 2:00 pm to 6:30 pm on Christmas Day 2018 and all even numbered years thereafter.
The Father is restrained from consuming alcohol at any time that the child is spending time with him in accordance with these Orders or for twelve (12) hours beforehand.
The parties are restrained from using critical or derogatory comments towards each other in the presence or hearing of the child or from permitting any third person to do so.
Changeover where the child goes from the care of one parent to the care of the other in accordance with these Orders is to take place at McDonald’s Family Restaurant at (omitted).
The parties are restrained from being accompanied by extended family members at changeover.
The parties are to keep each other informed of their current residential address and their mobile and landline telephone numbers and advise each other of any change within twenty-four (24) hours of such change occurring.
Each party must inform the other party of any serious illness…

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 Newman and Sables

Details

AGLC: Newman and Sables [2016] FCCA 722
Case: [2016] FCCA 722
Decision Date: 4 April 2016

CaseChat Overview and Summary

In the matter of Newman and Sables, heard by Judge Scarlett, the dispute concerned parenting orders for the child X. The orders discharged all earlier parenting arrangements and established new provisions for the child's living arrangements and time spent with each parent.

The court was required to determine the terms of the parenting orders, including the allocation of parental responsibility, the child's primary residence, and the specific schedule for the child's time with each parent. Additionally, the court addressed ancillary matters such as restrictions on parental conduct, changeover procedures, and communication protocols between the parents regarding the child's welfare.

The court ordered equal shared parental responsibility for the child X, with the child to live with the Mother. Specific time arrangements were detailed for the Father, with a phased approach from the date of the orders until the end of 2016, and then a revised schedule from 1 January 2017 onwards, including provisions for public holidays and the child's birthday. The orders also imposed a restraint on the Father consuming alcohol when the child was in his care or for twelve hours prior, and both parents were restrained from making derogatory comments about each other in the child's presence. Further orders stipulated the location for changeovers, prohibited extended family members from attending changeovers, and mandated the exchange of contact details and notification of serious illness or injury to the child. The substantive application was subsequently transferred to Judge Henderson for further mention.

Orders

Orders of the court

UNTIL FURTHER ORDER

All earlier parenting Orders are discharged.

The Father and the Mother are to have equal shared parental responsibility for the child X born (omitted) 2013.

The child X is to live with the Mother.

The child X is to spend time with the Father from the date of these Orders until 31 December 2016 as follows:

(a) From 8:00 am to 6:30 pm each Tuesday;

(b) From 8:00 am to 6:30 pm each Sunday with the exception of Mother’s Day and the Mother’s birthday being (omitted) 2016; and

From and after 1 January 2017, the child X is to spend time with the Father as follows:

(a) From 8:00 am to 6:30 pm each Tuesday with the exception of the child’s birthday namely (omitted) 2017 when the Father’s time with the child will conclude at 12:30 pm;

(b) From 8:00 am to 6:30 pm each Thursday;

(d) From 9:00 am to 2:00 pm on Christmas Day 2017 and all odd numbered years thereafter; and

(e) From 2:00 pm to 6:30 pm on Christmas Day 2018 and all even numbered years thereafter.

The Father is restrained from consuming alcohol at any time that the child is spending time with him in accordance with these Orders or for twelve (12) hours beforehand.

The parties are restrained from using critical or derogatory comments towards each other in the presence or hearing of the child or from permitting any third person to do so.

Changeover where the child goes from the care of one parent to the care of the other in accordance with these Orders is to take place at McDonald’s Family Restaurant at (omitted).

The parties are restrained from being accompanied by extended family members at changeover.

10.

The parties are to keep each other informed of their current residential address and their mobile and landline telephone numbers and advise each other of any change within twenty-four (24) hours of such change occurring.

11.

Each party must inform the other party of any serious illness or injury sustained by the child requiring admission to hospital or treatment by a specialist medical practitioner as soon as is reasonably practicable to do so.

12.

The substantive Application is transferred to the docket of Judge Henderson for further mention.

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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