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PENMAN & MORGAN

PENMAN & MORGAN

Case [2019] FamCA 146 15 March 2019

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Family Law

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FAMILY COURT OF AUSTRALIA

PENMAN & MORGAN

[2019] FamCA 146

FAMILY LAW – CHILDREN – Final hearing – Where there is one child aged 13 years who is subject to the proceedings – Where the parents also have two adult children who live with the father – Where the father seeks that the child lives with him and spends time with his mother as per his wishes – Where the mother seeks the child spends time with her on specified dates – Where each parent seeks sole parental responsibility – Where there is chronic conflict between the parents and a coping mechanism has been adopted by the child and his brothers of living with the father – Where the experts say that the child has a positive relationship with his mother – Where the existing arrangements have been sufficient to sustain this positive relationship – Where orders are made for the child to live with his father and spend time with his mother as per his wishes – Where an order is made that the father have sole parental responsibility.

FAMILY LAW – CHILD SUPPORT – Where the father seeks a raft of child support orders – Where the father does not identify a source of power which he contended was available to support his applications – Consideration of s 64B of the Family Law Act 1975 (Cth) – Where the father’s application is dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 64B, 65DAA

Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Penman

RESPONDENT:

Ms Morgan

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

SYC

902

2011

DATE DELIVERED:

15 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

7, 8, 9 and 14 January 2019

REPRESENTATION

THE APPLICANT:

Mr Penman

THE RESPONDENT:

Ms Morgan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Moore

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

All existing Orders in relation to the child C born in 2005 are discharged.
The father has sole parental responsibility for C.
The father will keep the mother advised of C’s progress including but not limited to matters of C’s wellbeing, health, education and extra-curricular activities.
C will spend time with and communicate with the mother as he and the mother agree from time to time.
The father will do all things necessary to ensure that C completes his secondary education at B school.
Otherwise all outstanding applications and responses are dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penman & Morgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law…

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.

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Details

AGLC: PENMAN & MORGAN [2019] FamCA 146
Case: [2019] FamCA 146
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of *Penman & Morgan*, heard by Stevenson J, the proceedings concerned a 13-year-old child, C. The parents, the father and the mother, had two adult children who resided with the father. The father sought orders for C to live with him and spend time with his mother according to C's wishes, with the father having sole parental responsibility. The mother sought orders for C to spend time with her on specified dates, also seeking sole parental responsibility. The court noted chronic conflict between the parents, a coping mechanism adopted by C and his brothers of living with the father, and expert evidence indicating C had a positive relationship with his mother, sustained by the existing arrangements.

The primary legal issues before the court were the determination of C's residence, the allocation of parental responsibility, and the nature and extent of C's time with each parent. Additionally, the court was required to consider the father's applications for various child support orders, including an examination of the relevant legislative provisions, specifically section 64B of the *Family Law Act 1975* (Cth), to ascertain the available sources of power for such applications.

Stevenson J reasoned that given the chronic parental conflict and the child's established coping mechanism of living with the father, it was in C's best interests for him to reside with his father and have sole parental responsibility. The court found that the existing arrangements had been sufficient to maintain C's positive relationship with his mother. Consequently, the court ordered that the father have sole parental responsibility for C, that C live with his father, and that C spend time with and communicate with his mother as they agreed from time to time. The father was also ordered to ensure C completed his secondary education at B school. The father's applications for child support were dismissed due to a lack of identified statutory power to support them.

Orders

Orders of the court

All existing Orders in relation to the child C born in 2005 are discharged.

The father has sole parental responsibility for C.

The father will keep the mother advised of C’s progress including but not limited to matters of C’s wellbeing, health, education and extra-curricular activities.

C will spend time with and communicate with the mother as he and the mother agree from time to time.

The father will do all things necessary to ensure that C completes his secondary education at B school.

Otherwise all outstanding applications and responses are dismissed.

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.

Citations

AGLC Citation

PENMAN & MORGAN [2019] FamCA 146

Most Recent Citation

PENMAN & MORGAN [2020] FCCA 113

Cases citing this decision · 1 of 1 shown

PENMAN & MORGAN
[2020] FCCA 113 Para 6

…The father annexes to his Initiating Application the judgment of Stevenson J in the Family Court of Australia dated 15 March 2019 ( Penman & Morgan [2019] FamCA 146). In that judgment, Her Honour dismissed the father’s proposed orders that related to issues of child support.…

View all 1 citing cases →

Cases cited in this decision · 9 of 9 shown

P v Child Support Registrar
[2015] FCA 116 Para 9

…the Federal Court of Australia. That appeal was dismissed by Katzmann J on 27 February 2015 ( P v Child Support Registrar [2015] FCA 116). ...…
P v Child Support Registrar
[2014] FCAFC 98 Para 9

…ull Court of the Federal Court. On 11 August 2014 that appeal was dismissed by Perram, Perry and Gleeson JJ ( P v Child Support Registrar [2014] FCAFC 98). The ultimate result was that [G’s] percentage of care was confirmed at 50 per cent between his parents. 23.It can be seen that in relation to the issue of [G’s…
P and Child Support Registrar M OTHER PARTY
[2014] AATA 229 Para 9

…f care for [E] to 55 per cent in the father’s favour backdated to 8 January 2013 ( P and Child Support Registrar and Anor [2014] AATA 229). 30.The father appealed the decision of the AAT to the Federal Court of Australia. That appeal was dismissed by Katzmann J on 27 February 2015 ( P v Child Support Registrar [20…
P v Child Support Registrar
[2013] FCA 1312 Para 9

…r again appealed to the Federal Court of Australia. On 5 December 2013 Wigney J dismissed the father’s appeal ( P v Child Support Registrar [2013] FCA 1312). 22.The father appealed Wigney J’s decision to the Full Court of the Federal Court. On 11 August 2014 that appeal was dismissed by Perram, Perry and Gleeson J…
Confidential and Child Support Registrar Anor JOINED PARTY
[2013] AATA 426 Para 9

…the decision of the SSAT namely a percentage of care for G at 50 per cent for each parent ( Confidential and Child Support Registrar and Anor [2013] AATA 426). 21.The father again appealed to the Federal Court of Australia. On 5 December 2013 Wigney J dismissed the father’s appeal ( P v Child Support Registrar [20…
P v Child Support Registrar
[2012] FCA 1398 Para 9

…AAT hadn’t properly considered s 54A(3) of the Assessment Act and remitted the matter for rehearing by the AAT ( P v Child Support Registrar [2012] FCA 1398). 20.On 25 June 2013 the AAT, having reheard the matter, again confirmed the decision of the SSAT namely a percentage of care for G at 50 per cent for each p…
THE FATHER and CHILD SUPPORT REGISTRAR THE MOTHER JOINED PARTY
[2012] AATA 396 Para 9

…he AAT for a review of the SSAT decision. On 28 June 2012 the AAT confirmed the SSAT’s decision ( The Father and Child Support Registrar and Anor [2012] AATA 396). 19.The father appealed to the Federal Court of Australia. On 29 November 2012 Buchanan J upheld the father’s appeal on the basis that the AAT hadn’t pr…
MRR v GR
[2010] HCA 4 Para 5

…In MRR v GR (2010) 240 CLR 461 the High Court of Australia said: 8.Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must: (a)consider whether the child spen…
Mazorski v Albright
(2007) 37 FLR 518 Para 1

…Subsection 60CC(2) refers to the benefit to a child of a "meaningful relationship" with both parents. In Mazorski v Albright (2007) 37 Fam LR 518 at 526-527 Brown J considered the import of the phrase "meaningful relationship" for the purposes of s 60CC(2). Her Honour said: 26.What these definitions convey is that “meaningfu…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
60B, 60CC, 61DA, 64B, 65DAA 6 mentions
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 8)
Family Law Rules 2004 (Cth)
1 mention