FAMILY COURT OF AUSTRALIA
| PEARCE & ARTHURSON | [2017] FamCA 893 |
| FAMILY LAW – CHILDREN – Final orders – Equal shared parental responsibility – Spend time with – Unacceptable risk – Where the mother seeks that the father spend no time with the child and seeks sole parental responsibility – Where the father ultimately seeks an equal care arrangement for the child and equal shared parental responsibility – Consideration of the best interests of the child – Consideration of the child having a meaningful relationship with both parents and any risks posed by the father – Where it is held the father does not pose an unacceptable risk to the child – Where it is ordered that the child shall live with the mother and spend significant and substantial time with the father Evidence Act 1995 (Cth) s 55 |
| M v M (1988) [1988] HCA 68 | ||
| APPLICANT: | Ms Pearce | |
| RESPONDENT: | Mr Arthurson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 3849 | of | 2013 |
| DATE DELIVERED: | 8 November 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 6 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connor SC |
| SOLICITOR FOR THE APPLICANT: | Joanna Richardson |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Family Law Project |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for C (“the child”) born … 2010 subject to paragraph 3 hereunder.
That the mother do have sole parental responsibility in respect of all health issues affecting the child subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s health (including dental) and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father accordingly.
The child shall live with the mother.
The child shall spend time with the father as follows:-
(a) Until 31 March 2018 (for three nights per fortnight):-
(i)From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
(ii)In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday until 7.30 pm;
(b) As and from 1 April 2018 (for four nights per fortnight):-
(i)From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate…
Continue reading PEARCE & ARTHURSON
Sign in free to access the full text
- AGLC
- PEARCE & ARTHURSON [2017] FamCA 893
- Case
- [2017] FamCA 893
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, as mandated by the *Family Law Act 1975* (Cth). This involved considering whether the child should have a meaningful relationship with both parents and assessing any risks posed by the father to the child.
Berman J found that the father did not pose an unacceptable risk to the child. Applying the principles of the *Family Law Act 1975* (Cth), particularly sections concerning the child's best interests and the presumption of equal shared parental responsibility, the court ordered that the child live with the mother and spend significant and substantial time with the father. The court also made orders for shared parental responsibility, with the mother retaining sole responsibility for health issues, subject to consultation with the father.
The court discharged all previous parenting orders and made detailed provisions regarding the child's time with each parent, including specific arrangements for school holidays and special occasions. Further orders addressed communication, travel, and the exchange of information between the parties.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the parties have shared parental responsibility for C (“the child”) born … 2010 subject to paragraph 3 hereunder.
3.
That the mother do have sole parental responsibility in respect of all health issues affecting the child subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s health (including dental) and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father accordingly.
4.
The child shall live with the mother.
5.
The child shall spend time with the father as follows:-
(a) Until 31 March 2018 (for three nights per fortnight):-
(i) From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
(ii) In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday until 7.30 pm;
(b) As and from 1 April 2018 (for four nights per fortnight):-
(i) From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
(ii) In the intervening week from the conclusion of school (or 3 pm if a non-school day) Thursday until 9 am the following Friday (or the commencement of school);
(c) As and from the commencement of the 2019 academic year for four nights per fortnight from the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Tuesday (or 9 am if a non-school day) and each alternate weekend thereafter.
(d) During all school holiday periods as follows:-
(i) For the 2017/2018 Christmas school holidays, the father’s weekend time shall be extended by one (1) day to 4 pm on the fifth day;
(ii) For the 2018 short end of term holidays, with the father for five (5) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the sixth day;
(iii) For the 2018/2019 Christmas school holidays, the father’s weekend time shall be extended by two (2) days to 4 pm on the sixth day;
(iv) For the 2019 short end of term holidays, with the father for six (6) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the seventh day;
(v) For the 2019/2020 Christmas school holidays, the father’s weekend time shall be extended by three (3) days to 4 pm on the seventh day;
(vi) For the 2020 short end of term holidays, with the father for seven (7) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the eighth day;
(vii) For the 2020/2021 Christmas school holidays and each year thereafter the father’s weekend time shall be extended by four (4) days to 4 pm on the eighth day.
6.
That the child will spend time with the parties on special occasions as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i) Between 9 am and 5 pm on Mother’s Day with the mother;
(ii) Between 9 am and 5 pm on Father’s Day with the father;
(b) On the child’s birthday:-
(i) If the child’s birthday falls on a day that is not a school day and the father would not otherwise be spending time with her THEN the child will spend time with the father from 2 pm until 7 pm;
(ii) If the child’s birthday falls on a day that is not a school day and the father has the care of the child THEN the child will spend time with the mother from 2 pm until 7 pm;
(c) At Easter:-
(i) In 2018 and in each alternate year thereafter the child will spend time with the father from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday until 5 pm on Easter Saturday and with the mother from 5 pm on Easter Saturday until 5 pm on Easter Monday;
(ii) In 2019 and in each alternate year thereafter the child will spend time with the mother from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday until 5 pm on Easter Saturday and with the father from 5 pm on Easter Saturday until 5 pm on Easter Monday;
(d) At Christmas:-
(i) In 2017 and in each alternate year thereafter the child will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the father between 3 pm on 25 December until 3 pm on 26 December;
(ii) In 2018 and each alternate year thereafter the child will spend time with the father between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December;
(e) Such other times as may be agreed.
7.
That the father’s time with the child during each school term shall be suspended during all short end of term school holiday periods.
8.
That each party be at liberty to travel interstate with the child PROVIDING they give the other party no less than fourteen (14) days’ notice in writing.
9.
That each party be restrained and an injunction granted restraining them from denigrating the other or any member of the other’s family to or in the presence of the child or allowing any other person to do so.
10.
That all handovers that do not take place at the child’s school shall take place at D cafe E Street, Suburb E or at such other venue or in such other manner as may be agreed by the parties.
11.
That the mother do facilitate the child receiving a telephone call from the father each Monday between the hours of 6 pm and 7 pm PROVIDED that the child is in the mother’s care and the father will facilitate the child receiving a telephone call from the mother each Monday between the hours of 6 pm and 7 pm whilst the child is in the father’s care.
12.
That each party advise the other of any change of address or telephone number or residential address of the child within twenty four (24) hours of such change occurring.
13.
That the mother shall inform the father of the identity and contact details of any health professional (including dental) involved with the child and shall authorise the health professional to communicate with the father and to release any information to him as he may request at his sole expense.
14.
That each party do all things necessary to authorise the other to obtain from the child’s school any reports, notices and letters and that each of them shall be entitled to attend parent/teacher interviews or other school based activities to which parents are invited, permitted or usually attend.
15.
That the order appointing the Independent Children’s Lawyer be discharged.
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.