Penski and Kocher - [2013] FamCA 255

FAMILY COURT OF AUSTRALIA

PENSKI & KOCHER

[2013] FamCA 255

FAMILY LAW – CHILDREN – Sole parental responsibility - Husband wanted a division of responsibilities and the wife wanted sole responsibility – No communication and many arguments – Parent who provides the predominant base should have all major long-term responsibilities – Presumption rebutted.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Penski

RESPONDENT:

Mr Kocher

FILE NUMBER:

DGC

2330

2010

DATE DELIVERED:

17 April 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Hayes & Associates

COUNSEL FOR THE RESPONDENT:

Ms Nikou SC with Mr Mort

SOLICITOR FOR THE RESPONDENT:

Nicholes Family Lawyers

Orders

That the Wife have sole parental responsibility for the child of the marriage R born … March 2008.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penski & Kocher (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2330 of 2010

Ms Penski

Applicant

And

Mr Kocher

Respondent

REASONS FOR JUDGMENT

Mr Kocher, (“the husband”) and Ms Penski, (“the wife”) have one child R, (“the child”) who has just turned five years of age.
The discrete issues for determination in these reasons concern the child both directly and indirectly. They are:
(a)Should there be an order for the wife to have sole parental responsibility or should those responsibilities be divided between the husband and wife? It will be evident therefore that neither party seeks equal shared parental responsibility;
(b)Where should the exchange point be for the child between his parents?
(c)Should the child’s time with the husband commence on Thursday before Easter from school or kindergarten in one year or at 5 pm and should it be extended to Easter Tuesday rather than concluding on the Monday afternoon?
(d)Should the child’s time with the husband conclude at the end of school holidays with the resumption of school or on the afternoon before school returns?
(e)Should there be limitations upon the husband telephoning the child?
(f)Should the husband be permitted to have someone present at handovers?
Simple though these six issues appear, the underlying dislike, mistrust and probable parallel parenting of the child by the husband and wife is palpable. Having said that, to their credit, significant issues were resolved by the husband and wife including agreeing to final property orders in an environment where that mistrust spilled over with accusations of non-disclosure, the provision of misleading material and general…

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 Penski and Kocher

Details

AGLC: Penski and Kocher [2013] FamCA 255
Case: [2013] FamCA 255
Decision Date

CaseChat Overview and Summary

In *Penski & Kocher* [2013] FamCA 255, the Family Court of Australia considered a dispute between a mother and father concerning parenting orders for their five-year-old child. The primary issue was whether the mother should have sole parental responsibility or if responsibilities should be divided between the parents. Several ancillary issues also arose, including the child's exchange point, the duration and timing of the father's time with the child, limitations on the father telephoning the child, and whether a third party should be present at handovers. The court noted the palpable underlying dislike and mistrust between the parties, which significantly impacted their ability to co-parent.

The court was required to determine the best interests of the child in relation to parental responsibility, the practical arrangements for the child's time with each parent, and communication between the parents. The evidence presented by both parties detailed a history of conflict, mistrust, and an inability to communicate effectively regarding long-term decisions and day-to-day matters concerning the child. This dysfunction was corroborated by the evidence of a psychologist, Mr B, who conducted a family assessment and reported that the parties' relationship was extremely dysfunctional, with little prospect of meaningful discussion or collaborative decision-making.

Applying the principles of the *Family Law Act 1975* (Cth), particularly section 60CA which mandates that the best interests of the child are paramount, the court found that the extreme level of conflict and the parties' inability to communicate rendered shared parental responsibility unworkable. The psychologist's evidence indicated that the parents would likely engage in "parallel parenting," where each parent makes decisions independently without consultation, which was detrimental to the child. Consequently, the court determined that it was in the child's best interests for the mother to have sole parental responsibility. The court also made specific orders regarding exchange points, the timing of the child's time with the father, and limitations on telephone calls, aiming to reduce conflict and promote the child's wellbeing.

Orders