PLUME & NEVIN - [2015] FamCA 477

FAMILY COURT OF AUSTRALIA

PLUME & NEVIN

[2015] FamCA 477

FAMILY LAW – CHILDREN – Best Interests – Magellan protocol – Where the child has meaningful relationships with both parents – Where, even in aggregation, the evidence did not establish that the child was at risk of either physical or psychological harm through his sexual abuse or his involvement in some form of sexual impropriety by the father – Where the evidence overwhelmingly established the child has been, and remains, immersed in an environment of profanity and distorted parental instruction – Where there were aspects of the evidence which impinged upon the mother’s parenting capacity, but the father conceded the child should continue to live with the mother – Child to spend regular time with the father, structured around the child’s educational commitments and the father’s proximity to the mother’s residence

FAMILY LAW – CHILDREN – Parental Responsibility – Where the evidence was insufficiently strong to rebut the presumption of equal shared parental responsibility – Parties to have equal shared parental responsibility

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 65LA

H & K [2001] FamCA 687
Hepburn & Noble (2010) FLC 93-438
Marriage of Bieganski (1993) 16 Fam LR
Marriage of Sedgley (1995) 19 Fam LR 363
Moose v Moose (2008) FLC 93-375

Re Andrew (1996) 20 Fam LR 538

APPLICANT:

Ms Plume

RESPONDENT:

Mr Nevin

INDEPENDENT CHILDREN’S LAWYER:

Mr Coyle, The Family Law Firm

FILE NUMBER:

NCC

2209

2014

DATE DELIVERED:

23 June 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

9, 10 & 11 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Conte-Mills

SOLICITOR FOR THE APPLICANT:

Craney Family Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Wilkinson

SOLICITOR FOR THE RESPONDENT:

Stuart Percy & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Coyle, The Family Law Firm

Orders

All former orders relating to the child B, born … 2011, (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)While ever the father lives within a radius of 150 kilometres from the mother’s residence:
(i)Until Monday 28 September 2015, each alternate Saturday and Sunday, from 10.00 am until 4.00 pm each day, commencing on the first Saturday and Sunday following these orders;
(ii)Thereafter until Monday 28 December 2015, each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday, commencing on the second Saturday after the last visit pursuant to Order 4(a)(i) hereof;
(iii)Thereafter until Monday 28 March 2016, each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the second Friday after the last visit pursuant to Order 4(a)(ii) hereof;
(iv)Thereafter…

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 PLUME & NEVIN

Details

AGLC: PLUME & NEVIN [2015] FamCA 477
Case: [2015] FamCA 477
Decision Date: 23 June 2015

CaseChat Overview and Summary

In the matter of *Plume & Nevin*, Austin J considered the best interests of the child, B, born in 2011, in determining parenting orders. The dispute involved allegations of sexual abuse and impropriety by the father, alongside concerns about the mother's parenting capacity due to an environment of profanity and distorted parental instruction. Despite these concerns, the father conceded that the child should continue to live with the mother.

The court was required to determine whether the presumption of equal shared parental responsibility was rebutted and, consequently, what arrangements for the child's living arrangements and time with each parent would best serve his interests. The court also had to assess the evidence regarding the alleged sexual abuse and the overall parenting environments provided by each party.

Austin J found that the evidence did not establish that the child was at risk of physical or psychological harm from sexual abuse or impropriety by the father. However, the court noted that the evidence overwhelmingly indicated the child was immersed in an environment of profanity and distorted parental instruction from the father. While aspects of the mother's parenting capacity were also impinged upon, the father's concession regarding the child living with the mother was a significant factor. The court concluded that the evidence was insufficiently strong to rebut the presumption of equal shared parental responsibility.

Consequently, the court ordered that the parties have equal shared parental responsibility for the child, that the child live with the mother, and that the child spend regular time with the father. The father's time with the child was to be structured around the child’s educational commitments and the father’s proximity to the mother’s residence, with detailed provisions outlining the frequency and duration of these visits, which varied based on the father's distance from the mother's home and the child's age and schooling. The orders also included provisions for communication between the child and each parent, and a restraint on denigrating the other parent in the child's presence.

Orders

Orders of the court

All former orders relating to the child B, born … 2011, (“the child”) are discharged.

The parties shall have equal shared parental responsibility for the child.

The child shall live with the mother.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

(a) While ever the father lives within a radius of 150 kilometres from the mother’s residence:

(i) Until Monday 28 September 2015, each alternate Saturday and Sunday, from 10.00 am until 4.00 pm each day, commencing on the first Saturday and Sunday following these orders;

(ii) Thereafter until Monday 28 December 2015, each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday, commencing on the second Saturday after the last visit pursuant to Order 4(a)(i) hereof;

(iii) Thereafter until Monday 28 March 2016, each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the second Friday after the last visit pursuant to Order 4(a)(ii) hereof;

(iv) Thereafter until the child commences school:

(A) Each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the second Friday after the last visit pursuant to Order 4(a)(iii) hereof; and

(B) For the first four consecutive days of each school holiday period, commencing at 6.00 pm on the last day of school term until 6.00 pm on the fourth day thereafter; and

(v) After the child commences school:

(A)

During school terms, each alternate weekend from

6.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(B) For the first seven days of the Autumn, Winter, and Spring school holidays, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and

(b) While ever the father lives beyond a radius of 150 kilometres from the mother’s residence:

(i) Until Monday 28 September 2015, every third Saturday and Sunday, from 10.00 am until 4.00 pm each day, commencing on the first Saturday and Sunday following these orders;

(ii) Thereafter until Monday 28 December 2015, each third weekend from 10.00 am on Saturday until 4.00 pm on Sunday, commencing on the third Saturday after the last visit pursuant to Order 4(b)(i) hereof;

(iii) Thereafter until Monday 28 March 2016, each third weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the third Friday after the last visit pursuant to Order 4(b)(ii) hereof;

(iv) Thereafter until the child commences school:

(A)

Each third weekend from 6.00 pm on Friday until

6.00 pm on Sunday, commencing on the third Friday after the last visit pursuant to Order 4(b)(iii) hereof; and

(B) For the first seven consecutive days of each school holiday period, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and

(v) After the child commences school:

(A) During school terms, each fourth weekend from 6.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

(B) For the first seven days of the Autumn, Winter, and Spring school holidays, commencing at 6.00 pm on the last day of school term until 6.00 pm on the seventh day thereafter; and

For the purpose of implementing Orders 3 and 4 hereof:

(a) The parties (or their nominees) shall exchange the child between them at the McDonalds Restaurant, C Town, NSW; and

(b) The father is restrained from causing or permitting the child to be taken beyond a radius of 50 kilometres from the mother’s home while the child spends time with him pursuant to Orders 4(a)(i), 4(a)(ii), 4(b)(i), and 4(b)(ii) hereof.

Unless otherwise agreed between the parties, Orders 4 and 5 hereof are suspended if the father fails to permit the child to spend time with him on three consecutive occasions.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

(a) The father each Wednesday at 6.00 pm, when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

(b) The mother each Wednesday at 6.00 pm, when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

(c) The parent with whom the child is not then staying, on the child’s birthday at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

10.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12.

Any and all outstanding applications are dismissed.

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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