Ralston and Bakker - [2013] FamCA 807

FAMILY COURT OF AUSTRALIA

RALSTON & BAKKER

[2013] FamCA 807

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the child.
FAMILY LAW – CHILDREN – With whom a child lives – Substantial and significant time.
FAMILY LAW – PROPERTY – Settlement in relation to a de facto relationship.
FAMILY LAW – CHILD SUPPORT DEPARTURE – Application for departure order.

Child Support (Assessment Act) 1989 (Cth)

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Gyselman & Gyselman (1992) FLC 92-279
Saberton & Saberton [2013] FamCAFC 89
Stanford & Stanford (2012) 293 ALR 70

APPLICANT:

Mr Ralston

RESPONDENT:

Ms Bakker

FILE NUMBER:

SYC

7826

2011

DATE DELIVERED:

17 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

11-13 and 15 March;
2-3 and 9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Levy; Mr Blackah

SOLICITOR FOR THE RESPONDENT:

Archer Legal

Orders

Parenting

The parties shall have equal shared parental responsibility for

T Bakker-Ralston born … 2010 (“the child”) and, without limiting the generality of the foregoing, they shall in particular have equal shared parental responsibility in relation to the following matters concerning the child:
(a)his education
(b)his religious and cultural upbringing
(c)his health
(d)his names and
(e)any change to his living arrangements which will make it significantly more difficult for him to spend time with a parent.
In the exercise of equal shared parental responsibility in relation to matters concerning the health and education of the child (save in relation to matters of health in the case of emergency), should either parent wish to propose a change to the existing arrangements for the assessment or treatment of the child, the parent proposing the change (“the proposing parent”) shall not implement it until he or she has:
(a)
informed the other parent (“the non-proposing parent”) in writing prior to making the proposed change and in such communication advised the

non-proposing parent of the reasons for the proposed change and
(b)provided the non-proposing parent with access to any advice or information relied upon by the proposing parent in support of the change and
(c)allowed the non-proposing parent a period of seven days from the time that the above information is received to respond to the proposing parent with their views on the proposed change and provide any alternative proposal that they may have.
If the parties cannot agree to a change to the existing arrangements for the assessment or treatment of the child by following the process outlined in

Order 2 above, the parties are to submit their dispute to mediation. Unless otherwise agreed between the parties, the mediator shall be selected by the proposing parent from a list of three mediators proposed by the non-proposing parent and, thereafter, the parties are to submit to mediation on the issue.
Unless otherwise agreed in writing by the parties, the child shall live with the mother other than…

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 Ralston and Bakker

Details

AGLC: Ralston and Bakker [2013] FamCA 807
Case: [2013] FamCA 807
Decision Date

CaseChat Overview and Summary

This case, heard in the Family Court of Australia by Fowler J, concerned Mr Ralston (the applicant) and Ms Bakker (the respondent). The dispute involved orders relating to parental responsibility for their child, T Bakker-Ralston, the child's living arrangements, and a property settlement arising from the parties' de facto relationship.

The court was required to determine the extent of parental responsibility to be shared by the parties, the specific living arrangements for the child, and the terms of the property settlement, including the transfer of a property and associated mortgage liability. The court also considered the implications of these orders for the child's best interests and the practicalities of co-parenting.

The court made orders for equal shared parental responsibility concerning the child's religious and cultural upbringing, and any changes to living arrangements that would significantly impact time with a parent. It established a detailed schedule for the child to live with each parent, with the child primarily living with the mother but spending substantial and significant time with the father, with this time increasing progressively over several months. The court also ordered the mother to pay the father a sum of $332,860 within three months, following which the father was to transfer his interest in the Suburb X property to the mother, who would then assume the mortgage liability. Provisions were also made for the sale of the property should the mother fail to meet these financial and property transfer obligations.

Orders