PETERS & MARCH - [2010] FamCA 151

FAMILY COURT OF AUSTRALIA

PETERS & MARCH

[2010] FamCA 151

FAMILY LAW - CHILDREN - With whom a child lives - Both parties seek orders for the children to live with them - Separation of siblings - The subject children are half siblings who have been raised together and cohabited as siblings and are currently separated with one living with the mother and the other with the father - Parenthood - The 2006 Part VII amendments did not prescribe a hierarchy of applicant - One of the subject children is not the father’s biological child - Parenting capacity of both parents - Family violence - Family Consultant’s evidence - The investigative approach adopted by the family consultant was flawed - Orders made for both children to live with the mother and spend time with the father every third weekend during school term and half of school holidays

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(1), (2)(a), (2)(b), 60CC(3), 60CC(4), 60CG, 61B, 61(C), 61DA(2), 61DB, 62B, 65DA(2), 65DAA, Pt VII
Evidence Act 1995 (Cth) s 140

Aldridge v Keaton [2009] FamCAFC 229
D & F [2001] FamCA 382
Goode and Goode (2006) FLC 93-286
Mazorski v Albright (2007) Fam LR 516
Potts and Bims and Ors [2007] FamCA 394
Rice v Miller (1993) FLC 92-415
Re Evelyn (1998) FLC 92-807
Russell & Russell and Anor [2009] FamCA 28

APPLICANT:

Mr Peters

RESPONDENT:

Ms March

FILE NUMBER:

(P)NCC

2215

2007

DATE DELIVERED:

16 February 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

18, 19, 20, 21, 22 and 26 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Boyd

SOLICITOR FOR THE APPLICANT:

Family Law Firm

COUNSEL FOR THE RESPONDENT:

Mr B Kelly

SOLICITOR FOR THE RESPONDENT:

Bridge Street Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms K O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All prior parenting orders and injunctions in relation to J born … July 2003 and L born … September 2004 (“the children”) are discharged.
Ms March (“the mother”) shall have sole parental responsibility for J born … July 2003.
The mother and Mr Peters shall have equal shared parental responsibility for the child L born … September 2004.
The children J and L shall live with the mother.
That the children shall spend time with Mr Peters as follows:
(a)during school term from 6.00 pm Friday until 6.00 pm Sunday on the second, fifth and eighth weekend each term;
(b)for half of the Gazetted NSW school holidays, being the first half in even numbered years and the second half in odd numbered years;
(c)in lieu of the first weekend of the school term in which Father’s Day falls on the Father’s Day weekend from 6.00 pm Friday until 6.00 pm Sunday;
(d)at such other times as the mother and Mr Peters agree.
In the event the mother believes that J is genuinely opposed to spending time with Mr Peters the mother shall inform him…

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 PETERS & MARCH

Details

AGLC: PETERS & MARCH [2010] FamCA 151
Case: [2010] FamCA 151
Decision Date: 16 February 2010

CaseChat Overview and Summary

This matter concerned parenting orders made by Ryan J in the Federal Circuit and Family Court of Australia. The parties involved were Ms March, the mother, and Mr Peters, the father, concerning their two children, J and L. The dispute revolved around the parental responsibility, living arrangements, and time spent with the children.

The court was required to determine the extent of parental responsibility for each child, establish the primary living arrangements for J and L, and set out the specific periods of time the children would spend with Mr Peters. Additionally, the court needed to address provisions for communication between the children and the non-resident parent, arrangements for birthdays and holidays, and the process for obtaining passports for the children. The court also considered orders restraining disparaging remarks about a parent in the presence of the children and the notification requirements in cases of illness or injury.

Ryan J ordered that all prior parenting orders and injunctions concerning J and L be discharged. Ms March was granted sole parental responsibility for J, while both parents were to have equal shared parental responsibility for L. The children were ordered to live with the mother, with specific provisions for Mr Peters' time with them, including school term weekends, school holidays, and special occasions like Father's Day and Mother's Day. The orders also detailed arrangements for birthdays, communication, notification of illness or injury, and a restraint on derogatory remarks. The court also authorised the mother to obtain an Australian passport for J, dispensing with the father's (RN) authorisation, and required both parents to sign documents for L's passport.

Orders

Orders of the court

All prior parenting orders and injunctions in relation to J born … July 2003 and L born … September 2004 (“the children”) are discharged.

Ms March (“the mother”) shall have sole parental responsibility for J born … July 2003.

The mother and Mr Peters shall have equal shared parental responsibility for the child L born … September 2004.

The children J and L shall live with the mother.

That the children shall spend time with Mr Peters as follows:

(a) during school term from 6.00 pm Friday until 6.00 pm Sunday on the second, fifth and eighth weekend each term;

(b) for half of the Gazetted NSW school holidays, being the first half in even numbered years and the second half in odd numbered years;

(c) in lieu of the first weekend of the school term in which Father’s Day falls on the Father’s Day weekend from 6.00 pm Friday until 6.00 pm Sunday;

(d) at such other times as the mother and Mr Peters agree.

In the event the mother believes that J is genuinely opposed to spending time with Mr Peters the mother shall inform him in advance and may suspend that forthcoming visit provided any suspension will not reduce the amount of time J spends with Mr Peters below two weekends each term and one week of each school holiday.

In the event that a period ordered pursuant to Order 5(a) coincides with a long weekend the children’s time with Mr Peters shall be extended to include the public holiday.

In addition to the periods of time that the children shall spend with the parties pursuant to the above orders the children shall spend time with them as follows:

(a) The mother and Mr Peters will be entitled to spend three hours with the children on the children’s birthdays at agreed times and failing agreement, between 12.00 noon and 3.00 pm on days which are not school days and between 4.00 pm and 7.00 pm if the birthday falls on a school day. For the purpose of this order Mr Peters shall collect and return the children from McDonalds at W on those occasions when the children will spend time with him. On those occasions when the children will spend time with the mother she will collect the children from Mr Peters and return them to him at a public venue nominated by him.

(b) In the event Mother’s Day falls on a weekend when the children are due to spend with Mr Peters his time with the children on Mother’s Day is suspended and he will, in lieu, spend time with the children the following weekend in accordance with the provisions of Order 5 above.

(c) Provided L remains in the vicinity of where he resides with the mother, on occasions when Mr Peters is able to visit L for additional weekends or periods after school. For the purpose of this order Mr Peters shall collect and return L from McDonalds at W.

Other than where a different venue is provided for in these orders, changeover shall take place at McDonalds Restaurant, M.

10.

The mother and Mr Peters are entitled to attend the following children’s activities:

(a) Sporting fixtures;

(b) Extra curricular activities that allow for parental attendance;

11.

When the children are in the care of the mother or Mr Peters whichever of them does not have the children may telephone the children each Monday, Thursday and Sunday between 6.30 pm and 7.00 pm implemented by the contacting party telephoning the other on a nominated telephone number. If the children are unavailable the relevant party is to ensure the children return the telephone call no later than the following day.

12.

In the event that either child suffers a serious injury or illness then the party in whose care the child is shall notify the other party as soon as practicable and provide any authority necessary to the treating practitioner to consult with the other party.

13.

That the mother and Mr Peters are restrained from making critical or derogatory remarks in relation to the other party in the presence or hearing of the children and ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

14.

The mother and Mr Peters shall keep each other advised of their current address and nominated telephone numbers.

15.

That the mother is authorised to execute all documents necessary to enable her to obtain an Australian passport for J born … July 2003 in relation to which the Court dispenses with any requirement that the child’s father, who is RN, also authorise that the child’s passport issue.

16.

That the mother and Mr Peters sign all documents required to cause an Australian passport to issue for the child L born … September 2004.

17.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

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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