Pattison and Parry - [2015] FCCA 3185

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATTISON & PARRY

[2015] FCCA 3185

Catchwords:
FAMILY LAW – Parenting – possible exposure to sexually explicit material or sexual abuse – possible exposure to psychological abuse or physical abuse – whether an unacceptable risk.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC

Evidence Act 1995 (Cth), s.140

Jones & Dunkel (1959) 101 CLR 298

Hall & Hall (1979) FLC 90-713
Korban & Korban [2008] FamCA 292
M & M (1988) 166 CLR 69
A & A (1998) FLC 92-800
Lansa & Clovelly [2010] FamCA 80
Wheedon & Gomer [2014] FamCAFC 141

Reg Bartley and Cec Brahe, LexisNexis Butterworths, The ABC of Evidence, vol 1 (at Service 34) [22,040], citing Dilosa v Latec Finance Pty Ltd (1996) 84 WN (Pt 1) (NSW) 557 at 581-2

Applicant:

MR PATTISON

Respondent:

MS PARRY

File Number:

HBC 813 of 2012

Judgment of:

Judge Baker

Hearing dates:

30 and 31 July 2015 and 3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Hobart

Delivered on:

3 December 2015

REPRESENTATION

Applicant:

Mr Pattison in person

Solicitors for the Applicant:

N/A

Respondent:

Ms Parry in person

Solicitors for the Respondent:

N/A

ORDERS

All previous parenting orders be discharged.
The mother is to have sole parental responsibility for the child, X born (omitted) 2010 (“X”), save that the mother shall, prior to making the sole ultimate decision about major long-term issues:
(a)Advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider by reference to the best interests of the child any such response prior to making any such decision; and
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother provide an authority to X’s school, doctor or any other treating professional so that the father may be provided with any information, written or oral, that the father may request.
The parties notify the other immediately in the event of any serious illness or injury whilst X is in their respective care.
The parties communicate via email in relation to X’s welfare except in the case of emergency which shall occur by text message.
The parties advise one another of any change of email or telephone contact details as soon as reasonably practicable of any change occurring.
Each party shall be at liberty to attend all school and extra-curricular activities and events to which parents are ordinarily invited or at which parents ordinarily attend.
The father spend time with X as follows:
(a)each alternate week from 10:00 am Sunday until 5:30 pm Tuesday, commencing 6 December 2015;
(b)each alternate week from 10:00 am Monday, or after school when X attends full-time school, until 5:30 pm Wednesday commencing 14 December 2015;
(c)such further time as agreed.
Notwithstanding any other order the following provisions apply to special days:
(a)in the event X is not spending time with the father on Father’s Day, from 10:00 am until 5:30 pm;…

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 Pattison and Parry

Details

AGLC: Pattison and Parry [2015] FCCA 3185
Case: [2015] FCCA 3185
Decision Date: 3 December 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Baker in relation to the child, X. The dispute centred on the allocation of parental responsibility and the specific arrangements for X's time with each parent, as well as communication protocols and restrictions on unsupervised care.

The court was required to determine the most appropriate parenting arrangements for X, considering the child's best interests. This involved deciding on the level of parental responsibility to be afforded to each parent, the specific time X would spend with the father, and the conditions under which such time would occur. Further issues included the method of communication between the parents, the provision of information to the father regarding X's schooling and medical care, and any necessary restrictions on the unsupervised care of X.

Judge Baker discharged all previous parenting orders and made new orders that granted the mother sole parental responsibility for X, with specific procedural requirements for the mother to follow when making major long-term decisions. These requirements included advising the father in writing of intended decisions, seeking his response, considering that response in light of X's best interests, and then advising him of the ultimate decision. The court also ordered that the mother provide an authority to X's school and medical professionals to allow the father access to information. Communication between the parties was to be primarily via email, except in emergencies, and both parents were ordered to notify each other of any serious illness or injury to X while in their care. The father was granted specific time with X on alternate weeks, with detailed provisions for special days including birthdays, Christmas, and Easter, and changeovers were to occur at a designated library. Crucially, the mother was restrained from leaving X in the unsupervised care of two named individuals, and both parents were restrained from denigrating each other in X's presence.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother is to have sole parental responsibility for the child, X born (omitted) 2010 (“X”), save that the mother shall, prior to making the sole ultimate decision about major long-term issues:

(a) Advise the father in writing of the decision intended to be made;

(b) Seek the father’s written response in relation thereto;

(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.

The mother provide an authority to X’s school, doctor or any other treating professional so that the father may be provided with any information, written or oral, that the father may request.

The parties notify the other immediately in the event of any serious illness or injury whilst X is in their respective care.

The parties communicate via email in relation to X’s welfare except in the case of emergency which shall occur by text message.

The parties advise one another of any change of email or telephone contact details as soon as reasonably practicable of any change occurring.

Each party shall be at liberty to attend all school and extra-curricular activities and events to which parents are ordinarily invited or at which parents ordinarily attend.

The father spend time with X as follows:

(a) each alternate week from 10:00 am Sunday until 5:30 pm Tuesday, commencing 6 December 2015;

(b) each alternate week from 10:00 am Monday, or after school when X attends full-time school, until 5:30 pm Wednesday commencing 14 December 2015;

Notwithstanding any other order the following provisions apply to special days:

(a) in the event X is not spending time with the father on Father’s Day, from 10:00 am until 5:30 pm; and on the father’s birthday from after school until 5.30pm if a school day, and from 10:00 am until 5:30 pm if a non-school day;

(b) in the event X is not spending time with the mother on Mother’s day, from 10:00 am until 5:30 pm; and on the mother’s birthday from after school until 5.30pm if a school day and from 10:00 am until 5:30 pm if a non-school day;

(c) in the event X is not spending time with the father on her birthday, from after school until 5.30pm if a school day, and if a non-school day from 12.30pm until 5.30pm;

(d) in the event X is not spending time with the mother on her birthday, from after school until 5.30pm if a school day, and if a non-school day 12.30pm until 5.30pm;

(e) commencing 2015 and each alternate year thereafter X spend time with the father from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the mother from 2:00pm Christmas Day until 5:30pm Boxing Day;

(f) commencing 2016 and each alternate year thereafter X spend time with the mother from 2:00 pm Christmas Eve until 2:00 pm Christmas Day and with the father from 2:00pm Christmas Day until 5:30 pm Boxing Day;

(g) commencing 2016 and each alternate year thereafter X spend time with the father from 10:00 am Good Friday until 2:00 pm Easter Sunday and with the mother from 2:00pm Easter Sunday until 10:00am Easter Tuesday and each alternate year thereafter;

(h) commencing 2017 and each alternate year thereafter X spend time with the mother from 10:00 am Good Friday until 2:00 pm Easter Sunday and with the father from 2:00pm Easter Sunday until 10:00am Easter Tuesday;

(i) such further time as agreed.

10.

Changeover, unless otherwise agreed, shall occur at the (omitted) Library.

11.

The mother be restrained from leaving X in the unsupervised care of Mr T or Mr I.

12.

Both parties be restrained from denigrating the other party in the presence or hearing of X, and from permitting any other 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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