Samson and Watkins - [2016] FamCA 855

FAMILY COURT OF AUSTRALIA

SAMSON & WATKINS

[2016] FamCA 855

FAMILY LAW – CHILDREN – Best Interests – Where final orders were previously made – Where the parties sought revised final orders – Where the child enjoys a meaningful relationship with both parents – Where both parties alleged their willingness to facilitate the child’s relationship with the other – Where there were allegations of child sexual abuse – Where the mother did not seek a positive finding that sexual abuse had occurred – Where the father accepts the mother acted responsibly by reporting the sexual assault allegations – Where the mother accepts the alleged sexual assault was improbable – Where both parties are highly distrustful of each other – Where both parties accept they each satisfactorily provide for the child’s needs – Whether there was any material change that would warrant amendment of the existing orders – Where the evidence disclosed only a modest change in circumstances – Where it is submitted the avoidance of further litigation is perhaps the most salient consideration – Where the parents lack of co-operation over the time the child should spend with the father would make future litigation probable unless new orders are made to eradicate future uncertainty – Ordered child spend specified time with the father unless otherwise agreed

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65 DAC, 65DAE
Evidence Act 1995 (Cth), s 135

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
Poisat v Poisat (2014) FLC 93-597
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363
Watkins & Samson [2014] FCCA 2514

APPLICANT:

Ms Samson

RESPONDENT:

Mr Watkins

INDEPENDENT CHILDREN’S LAWYER:

Coast Law

FILE NUMBER:

NCC

1334

2013

DATE DELIVERED:

30 September 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

19, 20 & 21 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cook

SOLICITOR FOR THE APPLICANT:

Peter Jurd Lawyer

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Conditsis Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Coast Law

Orders

Orders 6C, 6D, 7, 8, 10, 11 and 20 made on 3 November 2014 in relation to the child B, born … 2012, (“the child”) are discharged.
All interim orders relating to the child made since 3 November 2014 are discharged.
The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)During NSW public school terms:
(i)Each alternate week from 3.00 pm Thursday (or the conclusion of school or pre-school that day, whichever is the later) until 9.00 am Monday (or the commencement of school or pre-school that day, whichever is the earlier), commencing on the first Thursday of each term; and
(ii)Each alternate week from 3.00 pm Thursday…

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 Samson and Watkins

Details

AGLC: Samson and Watkins [2016] FamCA 855
Case: [2016] FamCA 855
Decision Date: 30 September 2016

CaseChat Overview and Summary

Austin J of the Federal Circuit Court of Australia made orders concerning the time a child, born in 2012, would spend with their parents. The proceedings involved a dispute between the parents regarding the child's living arrangements and time spent with each parent.

The court was required to determine the specific arrangements for the child's time with both the father and the mother, including during school terms, school holidays, and on specific public holidays such as Christmas Day, Boxing Day, Mother's Day, and Father's Day. The court also needed to consider the practical implementation of these arrangements, including collection and return of the child, and to address the consequences of contravening the orders made.

Austin J discharged previous orders relating to the child and made new orders detailing a structured schedule for the child's time with the father. This schedule involved alternating weekends during school terms, specific periods during school holidays, and a division of time on Christmas Eve, Christmas Day, and Boxing Day, with arrangements reversing in alternate years. The court also specified time allocations for Mother's Day and Father's Day. The orders included provisions for the collection and return of the child, specifying locations and times, and referenced a Fact Sheet outlining the obligations, consequences of contravention, and assistance available, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth). The Independent Children's Lawyer was discharged upon the expiry of any applicable appeal period, and all outstanding applications were dismissed.

Orders

Orders of the court

Orders 6C, 6D, 7, 8, 10, 11 and 20 made on 3 November 2014 in relation to the child B, born … 2012, (“the child”) are discharged.

All interim orders relating to the child made since 3 November 2014 are discharged.

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

(a) During NSW public school terms:

(i) Each alternate week from 3.00 pm Thursday (or the conclusion of school or pre-school that day, whichever is the later) until 9.00 am Monday (or the commencement of school or pre-school that day, whichever is the earlier), commencing on the first Thursday of each term; and

(ii) Each alternate week from 3.00 pm Thursday (or the conclusion of school or pre-school that day, whichever is the later) until 9.00 am Friday (or the commencement of school or pre-school that day, whichever is the earlier), commencing on the second Thursday of each term.

(b) For the first half of the NSW Autumn, Winter, and Spring public school holidays.

(c) During the NSW Summer public school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

For the purposes of implementation of Order 3 hereof:

(a) The NSW public school holidays are deemed to commence at 3.00 pm (or the conclusion of school or pre-school, whichever is the later) on the last day of school term;

(b) The holidays are deemed to end at 9.00 am (or the commencement of school or pre-school, whichever is the earlier) on the first day of the new school term;

(d) Alternating weeks are measured in increments of seven consecutive days, commencing at 3.00 pm (or the conclusion of school or pre-school, whichever is the later) on the last day of school term.

Order 5 made on 3 November 2014 and Order 3 hereof are suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

(b) Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

Unless otherwise agreed, for the purposes of implementing Order 5 made on 3 November 2014 and Orders 3 and 5 hereof, the parties shall respectively ensure the child’s:

(a) Collection from school or pre-school, whenever the child’s residence or expenditure of time with a party is to commence at the conclusion of school or pre-school during school term;

(b) Return to school or pre-school, whenever the child’s residence or expenditure of time with a party is to conclude at the commencement of school or pre-school during school term; and otherwise

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.

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

Any and all outstanding applications are dismissed.

Notation

(A) These orders operate in supplementation of the orders made by the Federal Circuit Court of Australia in respect of the child on 3 November 2014.

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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