Riemann and Riemann - [2016] FamCA 222

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN

[2016] FamCA 222

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father seeks sole parental responsibility for the children with the mother to spend no time with and have no contact with the children for a period of three months – Where the father alleges that the mother’s conduct has alienated the children from him – Where the mother proposes that the father spend time with the children as recommended by the family therapist or alternatively, that the father spend time with the children on a graduated basis – Where the Independent Children’s Lawyer opposes the father’s application –Where there is conflicting expert evidence as to the cause of the children’s poor relationship with the father – Consideration of section 60CC – Orders made for the children to spend unsupervised time with the father on a graduated basis – No orders made allocating parental responsibility.

Family Law Act 1975 (Cth) ss 60CA, 65AA, 60CC

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Riemann

RESPONDENT:

Ms Riemann

INDEPENDENT CHILDREN’S LAWYER:

Mr O'Dowd

FILE NUMBER:

SYC

5764

2014

DATE DELIVERED:

8 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

15 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The orders of 30 July 2015, 14 September 2015 and 22 October 2015 are suspended to the extent that those orders conflict with the operation of these orders.
For a period of four weeks commencing from the date of these orders, the father is to spend time with the children, B born … 2002, C born … 2005, and D born … 2007 (“the children”), as agreed between the parties and, in the absence of agreement, as follows:
a. Each Sunday from 11.00 am until 4.00 pm, with that time to be spent at the mother’s home. During that period the mother will vacate the home and it is a matter for the father whether he takes the children out with him; and
b. Each Wednesday afternoon, with the father to collect the children from their school and take them to tennis, have dinner with them and then return them to the mother at the mother’s home by no later than 7.00 pm.
Unless otherwise agreed between the parties, in the period subsequent to the first four weeks as set out in Order 2 above, the children’s time with the father is to be spent in three cycles of three weeks as follows:
a. From after school each Tuesday and Thursday until 7.00 pm, with the father collecting the children from school at the commencement of his time with them and delivering them to the mother’s home at…

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 Riemann and Riemann

Details

AGLC: Riemann and Riemann [2016] FamCA 222
Case: [2016] FamCA 222
Decision Date: 8 April 2016

CaseChat Overview and Summary

In Riemann and Riemann, McClelland J of the Supreme Court of New South Wales made orders concerning the time the father would spend with the parties' three children. The dispute concerned the arrangements for the children's time with their father, which had been subject to previous court orders.

The court was required to determine the specific terms of the father's time with the children, including the duration, frequency, and location of these periods, and how these arrangements would operate both immediately and in the longer term. The court also had to consider the suspension of prior orders to the extent they conflicted with the new arrangements.

McClelland J applied principles relating to the best interests of the children in determining the parenting arrangements. The court's reasoning led to a phased approach to the father's time with the children. Initially, for a period of four weeks, the father was to spend time with the children each Sunday afternoon at the mother's home, with the mother vacating the premises, and each Wednesday afternoon, involving school collection, tennis, and dinner before returning the children. Following this initial period, the arrangements were to transition to a three-week cycle, with weekday afternoons and specific Sundays, before a further shift to alternate Sundays and weekday afternoons.

The court ordered that the previous orders of 30 July 2015, 14 September 2015, and 22 October 2015 be suspended to the extent they conflicted with the new orders. The father was granted specific periods of time with the children, as detailed in the orders, with provisions for agreement between the parties and default arrangements if no agreement was reached.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The orders of 30 July 2015, 14 September 2015 and 22 October 2015 are suspended to the extent that those orders conflict with the operation of these orders.

For a period of four weeks commencing from the date of these orders, the father is to spend time with the children, B born … 2002, C born … 2005, and D born … 2007 (“the children”), as agreed between the parties and, in the absence of agreement, as follows:

a. Each Sunday from 11.00 am until 4.00 pm, with that time to be spent at the mother’s home. During that period the mother will vacate the home and it is a matter for the father whether he takes the children out with him; and

b. Each Wednesday afternoon, with the father to collect the children from their school and take them to tennis, have dinner with them and then return them to the mother at the mother’s home by no later than 7.00 pm.

Unless otherwise agreed between the parties, in the period subsequent to the first four weeks as set out in Order 2 above, the children’s time with the father is to be spent in three cycles of three weeks as follows:

a. From after school each Tuesday and Thursday until 7.00 pm, with the father collecting the children from school at the commencement of his time with them and delivering them to the mother’s home at 7.00 pm; and

b. For the first and third Sunday in each three week cycle, from 11.00 am until 4.00 pm, with such time to be spent at the mother’s home, with the mother to vacate the home during the father’s time with the children and the father to take the children on an outing if he so chooses.

Unless otherwise agreed between the parties, in the period subsequent to the three cycles of three weeks as set out in Order 3 above, the children are to spend time with the father as follows:

a. From after school each Tuesday and Thursday until 7.00 pm with the father to collect the children from school at the commencement of his time with them and is to deliver the children to the mother’s home at the conclusion of this time; and

b. Each alternate Sunday from 11.00 am until 4.00 pm with the changeover to occur at the father’s home.

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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