OWEN & OWEN - [2012] FMCAfam 1218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OWEN & OWEN

[2012] FMCAfam 1218

FAMILY LAW – Children – parenting – orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – three children aged 16, 9 and 3 years – high conflict between parents – conflicting evidence – difficulty about making factual findings in interim hearing – serious conflict between parents – need to reduce the number of changeovers to limit opportunities for conflict - alienation – estrangement.

PRACTICE AND PROCEDURE – Directions for case management – estimated length of hearing – where both parenting and property matters in issue – whether proceeding should remain in the Federal Magistrates Court – whether proceeding should be transferred to Family Court – consideration of Protocol between Family Court and Federal Magistrates Court – discretionary transfer of proceedings to the Family Court.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65AA, 65DAA
Federal Magistrates Act 1999 (Cth), s.39

Calvert & Calvert [2008] FMCAfam 101
Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR OWEN

Respondent:

MS OWEN

File Number:

SYC 2554 of 2012

Judgment of:

Scarlett FM

Hearing date:

16 August 2012

Date of Last Submission:

16 August 2012

Delivered at:

Sydney

Delivered on:

21 November 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Thompson

Solicitors for the Applicant:

Etheringtons Solicitors

Counsel for the Respondent:

Mr Fermanis

Solicitors for the Respondent:

Cominos Lawyers

Solicitor for the Independent Children’s Lawyer:

Mr Hearl

Solicitors for the Independent Children’s Lawyer:

Delaney Lawyers

ORDERS

UNTIL FURTHER ORDER:

The Respondent Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 1995.
The Applicant Father is to spend time with the child [X] at such times in accordance with the wishes of the child.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2003 and [Z] born [in] 2009.
The children [Y] and [Z] are to live with the Mother.
The children [Y] and [Z] are to spend time with the Father as follows:
(a)For a block period of time each fortnight during the school term encompassing alternate weekends commencing immediately after school or pre-school as the case may be on the Thursday of the first week of the fortnight and concluding at the commencement of school or pre-school on the following Tuesday;
(b)From 6:00pm on Christmas Eve until 11:00am on Christmas Day in 2012 and from 11:00am on Christmas Day until 6:00pm on Boxing Day in 2013;
(c)For the first week of the Autumn, Winter and Spring school holidays commencing immediately after school or pre-school on the final day of the school term and concluding at 6:00pm on the middle Saturday of the school holiday period;
(d)For two (2) separate weeks during the January school holidays in 2013 as follows:
(i)From 9:00am on Monday 7 January to 6:00pm on Sunday 9…

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 OWEN & OWEN

Details

AGLC: OWEN & OWEN [2012] FMCAfam 1218
Case: [2012] FMCAfam 1218
Decision Date: 21 November 2012

CaseChat Overview and Summary

The case of Owen & Owen involved the parents of three children aged 16, 9 and 3 years, who were in the midst of a contentious divorce. The father, the applicant, sought various parenting orders relating to the care, control and welfare of the children, as well as property settlement orders. The mother, the respondent, opposed the application and sought sole parental responsibility for all the children. The Federal Magistrates Court was tasked with determining the interim parenting arrangements for the children, given the high level of conflict between the parents.

The primary legal issue before the court was the determination of the interim parenting orders for the three children, considering the best interests of the children, parental responsibility and the level of conflict between the parents. The court needed to weigh the evidence presented by both parties, including expert evidence, and decide on the most appropriate arrangements to minimise conflict and promote the welfare of the children.

In delivering the decision, the court found that the level of conflict between the parents was significant, and there was a risk of alienation and estrangement of the children from the father. The court recognised the importance of reducing the number of changeovers to limit opportunities for conflict, and took into account the differing ages and needs of the children. The court ordered that the oldest child would live with the mother and have no contact with the father, while the two younger children would live with the mother but spend time with the father on a set schedule. The father was also restrained from consuming alcohol during or for a period of twelve hours prior to spending time with the children, and both parents were restrained from denigrating or criticising each other in the presence or hearing of the children.

The final orders made by the court included sole parental responsibility for the oldest child resting with the mother, equal shared parental responsibility for the two younger children, and a set schedule for the father to spend time with the younger children. The father was also restrained from consuming alcohol during or for a period of twelve hours prior to spending time with the children, and both parents were restrained from denigrating or criticising each other in the presence or hearing of the children. The court also considered the issue of transferring the proceedings to the Family Court but ultimately decided that the matter should remain in the Federal Magistrates Court.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The Respondent Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 1995.

The Applicant Father is to spend time with the child [X] at such times in accordance with the wishes of the child.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the marriage [Y] born [in] 2003 and [Z] born [in] 2009.

The children [Y] and [Z] are to live with the Mother.

The children [Y] and [Z] are to spend time with the Father as follows:

(a) For a block period of time each fortnight during the school term encompassing alternate weekends commencing immediately after school or pre-school as the case may be on the Thursday of the first week of the fortnight and concluding at the commencement of school or pre-school on the following Tuesday;

(b) From 6:00pm on Christmas Eve until 11:00am on Christmas Day in 2012 and from 11:00am on Christmas Day until 6:00pm on Boxing Day in 2013;

(c) For the first week of the Autumn, Winter and Spring school holidays commencing immediately after school or pre-school on the final day of the school term and concluding at 6:00pm on the middle Saturday of the school holiday period;

(d) For two (2) separate weeks during the January school holidays in 2013 as follows:

(i) From 9:00am on Monday 7 January to 6:00pm on Sunday 9 January 2013; and

(ii) From 9:00am on Monday 21January to 6:00pm on Sunday 27 January 2013; and

(e) For a block period of time during the weekend encompassing Father’s Day commencing immediately after school or pre-school as the case may be on the Thursday before Father’s Day and concluding at the commencement of school or pre-school on the Tuesday morning immediately after Father’s Day; and

(f) From immediately after school or pre-school as the case may be until 6:00pm on the father’s birthday and each of the children’s birthdays if such day should fall on a day when the children would not otherwise be spending time with the father as provided by these Orders.

The children [Y] and [Z] will not spend time with the Father during the block period of time encompassing Mother’s Day but will spend the next block of time with the father the following week from immediately after school or pre-school as the case may be on the Thursday after Mother’s Day until the commencement of school or pre-school on the following Tuesday.

For the purposes of the above Orders the Father will collect the children from school or pre-school as the case may be and return them to school or pre-school whenever these Orders provide that the children’s time will commence or conclude immediately after or immediately before school or pre-school and at all other times he is to collect the children from and return the children to the Mother [location omitted].

The Father is restrained from consuming alcohol during or for a period of twelve (12) hours prior to the children spending time with him in accordance with these Orders.

The parties are restrained from denigrating or criticising each other in the presence or hearing of any of the children [X], [Y] and [Z] or from permitting a third person to do so.

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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