Pilcher and Schneider - [2007] FMCAfam 1163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PILCHER & SCHNEIDER

[2007] FMCAfam 1163

FAMILY LAW – Arrangements pending trial for care of children aged 4 and twenty months – application of presumption of equal shared parental responsibility – allegations of family violence – objective aspect of family violence – reasonable grounds to believe family violence has occurred – whether appropriate that presumption be rebutted – best interests – relevance of ages of children concerned – equal time – substantial and significant time.

Family Law Act 1975, s.60CC; 61DA; 65DAA

Goode & Goode (2006) FLC 92-286

Applicant:

MR PILCHER

Respondent:

MS SCHNEIDER

File number:

ADC 2591 of 2007

Judgment of:

Brown FM

Hearing date:

21 August 2007

Date of last submission:

21 August 2007

Delivered at:

Adelaide

Delivered on:

21 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Bowler

Solicitors for the Applicant:

Di Rosa Lawyers

Counsel for the Respondent:

Mr T.S. Adey

Solicitors for the Respondent:

Adey Lawyers

ORDERS

Until further or other order, I order:

The parties have equal shared parental responsibility for the children of the relationship H born in March 2003 and P born in December 2005.
The said children live with the father as follows;
(i)in alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on a Monday);
(ii)in each week from 5:00pm Wednesday until 8:00am Thursday;
(iii)from 12:00 midday on 24 December 2007 until 11:00am on 25 December 2007;
(iv)any other times as may be agreed between the parties from time to time.
The said children live with the mother at all other times.
The parties do collect and return the children at locations to be agreed between the parties but failing agreement at the Mxxx Child Care Centre or at the Kxxx Primary School.
The parties do each keep the other informed of any medical occurrence or accident or medical emergency in respect of the children which may occur from time to time.
The parties do keep the other informed of their residential address and contact details including but not limited to their landline and mobile telephone numbers.
This matter be listed for final hearing on 21 and 22 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 24 January 2008.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
That the parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition…

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 Pilcher and Schneider

Details

AGLC: Pilcher and Schneider [2007] FMCAfam 1163
Case: [2007] FMCAfam 1163
Decision Date: 21 August 2007

CaseChat Overview and Summary

In the matter of Pilcher and Schneider, the Family Court was tasked with resolving parenting arrangements concerning two children, H and P. The parents, Pilcher and Schneider, had separated and were in dispute over the allocation of parental responsibilities and the specific schedule for the children’s residence with each parent. The court was required to determine the best interests of the children and establish a parenting plan that reflected their needs.

The court had to consider the implications of each parent's proposed schedules, the children’s current living arrangements, and the necessity for stability and consistency in their lives. Additionally, the court had to address issues of communication between the parties and ensure that both parents were kept informed about the children’s health, safety, and living arrangements.

The court concluded that an equal shared parental responsibility arrangement was in the best interests of the children. The specific residence schedule was set to provide a balanced and predictable environment for the children, ensuring they spend significant time with both parents while maintaining their existing routines. The court also mandated that both parents remain informed of each other’s contact details and any significant events concerning the children’s welfare. The court further ordered the parties to attend a family dispute resolution conference and a family assessment to facilitate ongoing communication and cooperation.

The court issued orders for equal shared parental responsibility, a detailed residence schedule, mandatory communication between the parents, and participation in family dispute resolution and assessment processes. The matter was set for final hearing, with strict timelines for the submission of evidence and the payment of fees.

Orders

Orders of the court

Until further or other order, I order:

The parties have equal shared parental responsibility for the children of the relationship H born in March 2003 and P born in December 2005.

The said children live with the father as follows;

(i) in alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on a Monday);

(ii) in each week from 5:00pm Wednesday until 8:00am Thursday;

(iii) from 12:00 midday on 24 December 2007 until 11:00am on 25 December 2007;

(iv) any other times as may be agreed between the parties from time to time.

The said children live with the mother at all other times.

The parties do collect and return the children at locations to be agreed between the parties but failing agreement at the Mxxx Child Care Centre or at the Kxxx Primary School.

The parties do each keep the other informed of any medical occurrence or accident or medical emergency in respect of the children which may occur from time to time.

The parties do keep the other informed of their residential address and contact details including but not limited to their landline and mobile telephone numbers.

This matter be listed for final hearing on 21 and 22 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 24 January 2008.

The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.

10.

That the parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.

11.

Pursuant to section 13C(1)(b) of the Family Law Act the parties do attend a conference at Relationships Australia at a time and date to be advised to the parties, with a family dispute resolution practitioner, to discuss the care, welfare and development of the said children in an endeavour to resolve any differences between the parties in relation thereto.

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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