Pitman and Bond (No.2) - [2008] FMCAfam 1316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PITMAN & BOND (No.2)

[2008] FMCAfam 1316

FAMILY LAW – Parenting – father’s propensity to commit acts of family violence in relationships – appropriate time for children aged five and two to spend with father – whether mother should have sole parental responsibility for the children.

Family Law Act 1975, ss.4, 60CC, 61DA

JG & BG (1994)FLC 92-515

Applicant:

MS PITMAN

Respondent:

MR BOND

File Number:

DNC 656 of 2007

Judgment of:

Terry FM

Hearing dates:

13 & 15 August & 12 September 2008

Date of Last Submission:

19 September 2008

Delivered at:

Darwin

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Holtham

Solicitors for the Applicant:

Story & Associates

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Maleys

ORDERS

That all previous parenting orders are discharged.
That the mother and father have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006.
That the children live with the mother.
That the children spend time with the father:
(a)for a period of six months from the date of these orders:-
(i)from 9am on Saturday 13 December 2008 until 5pm on Sunday 14 December 2008;
(ii)with X for two non-consecutive weeks during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 until 9am on 3 January 2009 and from 9am on 17 January 2009 until 9am on 24 January 2009;
(iii)with Y for two non-consecutive periods of three days during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 to 9am on 30 December 2008 and from 9am on 17 January 2009 until 9am on 20 January 2009;
(iv)each alternate weekend during school terms commencing on the first weekend of each school term from 9am on Saturday until 5pm on Sunday;
(v)from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time;
(b)after the conclusion of six months from the date of these orders:
(i)each alternate weekend during school terms from 5pm on Friday until 5pm on Sunday;
(ii)from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time.
(c)commencing with the April school holidays 2009 for half of each school holiday period as agreed between the parties and failing agreement for the first half of each holiday period which commences in 2009 and each alternate year thereafter and the second half of each holiday period which commences in 2010 and each alternate year thereafter;
(d)on the Father’s Day weekend each year from 5pm on Friday until 5pm on Sunday if it falls on a weekend when the children are not otherwise with the father;
(e)should the birthdays…

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 Pitman and Bond (No.2)

Details

AGLC: Pitman and Bond (No.2) [2008] FMCAfam 1316
Case: [2008] FMCAfam 1316
Decision Date: 10 December 2008

CaseChat Overview and Summary

In Pitman and Bond (No.2), the court was called upon to decide on the parenting arrangements for two children, X and Y. The case involved a dispute between the parents, focusing on the allocation of time the children would spend with each parent, the consideration of the children's best interests, and the need to prevent exposure to family violence and illegal drug use. The mother argued for more restricted contact between the father and the children until the father could obtain a psychological report that would mitigate concerns about potential future family violence. In contrast, the father sought more extensive time with the children, including overnight stays and holiday periods.

The court was tasked with balancing the potential benefits of increased time with the father against the risks associated with family violence and illegal drug use. The judge examined the evidence regarding the father's commitment to ensuring the children's safety and well-being, as well as the impact of the distance between the parents' residences on the practicality and cost of changing the children over between parents. Ultimately, the court found that the father's involvement in the children's lives was likely to be beneficial, provided that he adhered to certain conditions aimed at preventing exposure to family violence and illegal drug use. The judge concluded that the children spending overnight and holiday time with the father would be in their best interests, as it would facilitate a meaningful bond between the father and the children and allow for a broader range of activities and experiences.

The court issued detailed orders that provided for equal shared parental responsibility between the parents, with the children residing primarily with the mother. The father was granted specific visitation rights, including overnight stays and holiday periods, subject to certain conditions aimed at safeguarding the children. The orders also included provisions for communication between the parents and changeover arrangements to mitigate the practical difficulties and expenses associated with the distance between the parents' residences. The court's decision underscored the importance of considering the children's best interests, including their need for stability, safety, and meaningful relationships with both parents, while also addressing the specific risks and challenges presented by the parents' circumstances.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the mother and father have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006.

That the children live with the mother.

That the children spend time with the father:

(a) for a period of six months from the date of these orders:-

(i) from 9am on Saturday 13 December 2008 until 5pm on Sunday 14 December 2008;

(ii) with X for two non-consecutive weeks during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 until 9am on 3 January 2009 and from 9am on 17 January 2009 until 9am on 24 January 2009;

(iii) with Y for two non-consecutive periods of three days during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 to 9am on 30 December 2008 and from 9am on 17 January 2009 until 9am on 20 January 2009;

(iv) each alternate weekend during school terms commencing on the first weekend of each school term from 9am on Saturday until 5pm on Sunday;

(v) from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time;

(b) after the conclusion of six months from the date of these orders:

(i) each alternate weekend during school terms from 5pm on Friday until 5pm on Sunday;

(ii) from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time.

(c) commencing with the April school holidays 2009 for half of each school holiday period as agreed between the parties and failing agreement for the first half of each holiday period which commences in 2009 and each alternate year thereafter and the second half of each holiday period which commences in 2010 and each alternate year thereafter;

(d) on the Father’s Day weekend each year from 5pm on Friday until 5pm on Sunday if it falls on a weekend when the children are not otherwise with the father;

(e) should the birthdays fall on a day when the children would not otherwise be with the father, from 9am until 1pm on each of the children’s birthdays and the father’s birthday if the birthdays fall on a non-school day and from after school until 6pm if the birthdays fall on a school day;

(f) at such additional or alternate times as may be agreed between the parties.

That if Mother’s Day falls on a weekend when the children would otherwise be with the father, the father shall not spend time with the children on that weekend.

That if the children are otherwise with the father on the mother’s birthday or the children’s birthdays, the children shall spend from 9am until 1pm with the mother on those days if the days fall on a non-school day, and from after school until 6pm if the birthdays fall on a school day.

That the father have telephone communication with the children when they are not in his care at times agreed between the parties and failing agreement each Thursday at 5.30pm, with the father to place the call and the mother to make the children available to receive the call.

That the mother have telephone communication with the children if they are in the father’s care at times agreed between the parties and failing agreement each Thursday at 5.30pm, with the mother to place the call and the father to make the children available to receive the call.

That notwithstanding any other provisions of this order, if the parents are in the same locality on Christmas Day the children shall spend time with the father from 2pm on Christmas Day until 2pm on Boxing Day in 2008 and each alternate year thereafter and from 2pm on Christmas Eve until 2pm on Christmas Day in 2009 and each alternate year thereafter, and shall spend time with the mother from 2pm on Christmas Eve until 2pm on Christmas Day in 2008 and each alternate year thereafter and from 2pm on Christmas Day until 2pm on Boxing Day in 2009 and each alternate year thereafter.

10.

That the father is restrained and an injunction is granted restraining him from using any illegal drugs (including cannabis) while the children are in his care.

11.

That in the event that either of the children are seriously injured or diagnosed as suffering a serious illness the parent who has the care of the children at the time shall notify the other parent as soon as practicable and advise the names of any treating doctors.

12.

That each party keep the other advised of their residential address and mobile and landline telephone numbers and notify the other within 2 days of any change to these details.

13.

That unless otherwise agreed between the parties changeover shall take place at (omitted) Centacare, or if (omitted) Centacare is not open or not able to provide a service at the relevant time, at (omitted) Police Station.

14.

That if either party intends to travel away from their usual residential address with the children for a holiday, they shall provide to the other party not less than seven days prior to departure an itinerary containing details of the dates of departure and return, and the address and telephone number of the place where they will be staying with the children during the holiday.

15.

That the parents communicate in respect of parenting matters:-

(a) in a communication book which will travel with the children and which book shall be used for communication about the care welfare and development of the children only; or

(b) by SMS text message in the event of an emergency.

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

I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:either of their parents; orany other child, or other person (including any grandparent or other relative of the child) with whom they have been living. The mother proposed that the father spend day time only with the children until he obtained a report from a psychologist which certified that there was no risk of him committing acts of domestic (not family) violence in the future. She did not propose any holiday time in the meantime, save for an extension by one day of the father’s time with the children during school holidays. It was the mother’s case that any change prior to that, giving the father more extensive time with the children, would result in the an unacceptable risk of the children again being exposed to family violence. I am however satisfied that there is reason to be cautiously optimistic that the father will ensure that the children are not exposed to family violence in the future. If the children are not exposed to family violence or use of illegal drugs, then the children spending overnight and holiday time with the father is likely to be a beneficial change for the children. It will allow the father to take part in a wider range of both caring and fun activities with the children. It will better ensure that Y develops a meaningful bond with her father. It will accord with X’s wishes. It will allow the father to take the children interstate for short periods for holidays, and enable the children to spend time with the father’s extended family and with A. I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis. The mother and children live at (omitted), about 51 kilometres by road from (omitted), where the contact service the parties have been using is located. (omitted) is an even greater distance from Darwin where the father now lives. X attends school at (omitted) Primary School, the closest public primary school to the mother’s home. This school is also located a considerable distance from Darwin. The distance the parties live apart does create difficulty and expense for the parties in terms of changing the children over between them. The parties did not use a contact changeover service until these proceedings commenced, but the mother now proposes that changeover occur only at a changeover centre or a police station. The closest changeover centre is at (omitted) and to use it the mother faces travel of at least 25 minutes each way, as well as the cost of travel. This difficulty and expense makes it preferable that the children both spend the same time with the father. If Y spends day periods and X overnights, the mother will be required to make two additional return trips each contact period.