Sampson and Baker (No.2) - [2011] FMCAfam 1003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMPSON & BAKER (No.2)

[2011] FMCAfam 1003

FAMILY LAW – Children – interim orders – application to vary interim orders – where application made less than three weeks after interim decision handed down – whether application tantamount to appeal – where Single Expert Report became available prior to interim decision being handed down but was not before the Court – where parties entered into consent orders to vary interim parenting order on the first return date of the application to vary the interim orders – where Applicant seeks a graduated increase in time with child prior to final hearing – where final hearing not to take place for a further eleven months – whether parties entered into a concluded interim settlement – whether Respondent resiled from agreement – costs – whether cost order appropriate.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 117

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Masters v Cameron (1954) 91 CLR 353
Sampson & Baker [2011] FMCAfam 500
Treloar & Nepean [2009] FamCAFC 206; (2009) FLC 93-417

Applicant:

MS SAMPSON

Respondent:

MS BAKER

File Number:

SYC 5536 of 2010

Judgment of:

Scarlett FM

Hearing date:

1 August 2011

Date of Last Submission:

18 August 2011

Delivered at:

Sydney

Delivered on:

20 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Karras Partners

The Respondent:

In person

ORDERS

UNTIL FURTHER ORDER:

Order 5 made on 3 June 2011 and varied by consent on 1 August 2011 is varied so as to provide that the Applicant is to spend time with the child [X]:
(a)Each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday in Week 1until 31 December 2011;
(b)Each alternate week from 5:00 pm on Thursday until 8:00 am on Friday in Week 2 until 31 December 2011;
(c)
Each Monday and Wednesday from 8:00 am to 6:00 pm until

31 December 2011;
(d)From 9:00 am to 1:00 pm on Christmas Day, Mother’s Day and the child’s birthday;
(e)From and after 1 January 2012, each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday; and
(f)From and after 1 January 2012 from 8:00 am on Monday until 5:00 pm on Tuesday of each week.
Order 6 made on 3 June 2011 is varied so as to provide that the Respondent is to spend time with the child [Y]:
(a)Each other weekend being the weekend of Week 2 when [X] is not spending time with the Applicant from 9:00 am on the Saturday until 5:00 pm on the Sunday;
(b)Each Tuesday and Friday from 8:00 am to 6:00 pm;
(c)From 1:00 pm to 5:00 pm on Christmas Day, Mother’s Day and the child’s birthday; and
(d)From and after 1 January 2012 from 9:00 am on the Thursday of Week 1 until 8:00 am on the Friday.
The parties are to do all things necessary to facilitate the attendance of [X] at [R]…

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 Sampson and Baker (No.2)

Details

AGLC: Sampson and Baker (No.2) [2011] FMCAfam 1003
Case: [2011] FMCAfam 1003
Decision Date: 20 September 2011

CaseChat Overview and Summary

Sampson and Baker (No.2) is a case concerning the parenting arrangements for two children, [X] and [Y]. The dispute primarily revolves around the visitation and time-sharing schedule between the parents, Sampson, the Applicant, and Baker, the Respondent. The Family Court of Australia was tasked with determining the appropriate arrangements to ensure the welfare and best interests of the children.

The court was required to decide on the specifics of the time-sharing arrangements for both children, taking into account the evidence and submissions presented by both parties. This included the allocation of weekends, specific days, and special occasions such as holidays and birthdays. The court had to balance the needs and preferences of both parents while prioritising the children's welfare, education, and overall well-being.

The court carefully considered the evidence and submissions, ultimately varying the previous orders to provide a more equitable and detailed schedule. The new arrangement ensures that each parent has sufficient time with the children, while also accommodating the children's education and other commitments. The court's decision reflects a detailed consideration of the children's needs and the parents' respective roles in their lives.

The final orders detail specific visitation times for each parent, including weekends, weekdays, and special occasions. These orders aim to provide stability and predictability in the children's lives while allowing both parents to maintain a meaningful relationship with their children. The court's decision was made with the best interests of [X] and [Y] at the forefront, aiming to foster a harmonious co-parenting relationship.

Orders

Orders of the court

UNTIL FURTHER ORDER:

Order 5 made on 3 June 2011 and varied by consent on 1 August 2011 is varied so as to provide that the Applicant is to spend time with the child [X]:

(a) Each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday in Week 1until 31 December 2011;

(b) Each alternate week from 5:00 pm on Thursday until 8:00 am on Friday in Week 2 until 31 December 2011;

(c)

Each Monday and Wednesday from 8:00 am to 6:00 pm until

31 December 2011;

(d) From 9:00 am to 1:00 pm on Christmas Day, Mother’s Day and the child’s birthday;

(e) From and after 1 January 2012, each alternate weekend from 5:00 pm on Friday until 5:00 pm on Sunday; and

(f) From and after 1 January 2012 from 8:00 am on Monday until 5:00 pm on Tuesday of each week.

Order 6 made on 3 June 2011 is varied so as to provide that the Respondent is to spend time with the child [Y]:

(a) Each other weekend being the weekend of Week 2 when [X] is not spending time with the Applicant from 9:00 am on the Saturday until 5:00 pm on the Sunday;

(b) Each Tuesday and Friday from 8:00 am to 6:00 pm;

(d) From and after 1 January 2012 from 9:00 am on the Thursday of Week 1 until 8:00 am on the Friday.

The parties are to do all things necessary to facilitate the attendance of [X] at [R] School on Thursdays and Fridays in each week in 2012 and on one other day each week if a place is available for him.

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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