Sargent and Selwyn - [2016] FCCA 1987

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARGENT & SELWYN

[2016] FCCA 1987

Catchwords:
FAMILY LAW – Children – Parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child aged 3 years and 5 months – where some parenting orders made by consent.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Applicant:

MR SARGENT

Respondent:

MS SELWYN

File Number:

SYC 7405 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

11 – 13 March 2015

Date of Last Submission:

13 March 2015

Delivered at:

Sydney

Order pronounced:

29 June 2015

Delivered on:

28 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Ms Boyle

Solicitors for the Respondent:

Linden Legal

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2012.
The child X is to live with the Mother.
The child X is to spend time with the Father from the date of these Orders until 31 December 2015 as follows:
(a)In the first week of each fortnight:
(i)from 8:30 am to 5:30 pm on Tuesday; and
(ii)from immediately after pre-school on Thursday until 5:30 pm on Friday;
(b)In the second week of each fortnight:
(i)From 8:30 am to 5:30 pm on Tuesday; and
(ii)From 8:30 am to 6:00 pm on Saturday.
(c)For changeovers where the child goes from the care of one parent to the care of the other on Tuesdays and Fridays, the parent delivering the child will deliver him to the (omitted) Preparatory School at (omitted) and the parent collecting the child will collect him from (omitted) Preparatory School;
(d)On Saturdays or on days when the child does not attend pre-school changeovers will take place at (omitted);
(e)For two periods each of four (4) days including three overnight periods from 9:00 am on the first day until 5:00 pm on the fourth day, for which purpose the father is to give the mother at least six (6) weeks’ notice of the days he intends to exercise the times provided for in this Order;
(f)The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the father on either a Thursday, Friday or a Saturday in accordance with these Orders;
(g)The Father’s time with the child is to be suspended for two (2) periods each of four (4) consecutive days at least two months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.
The child X is to spend time with the Father from 1 January to 30 June 2016 as follows:
(a)In the first week of each fortnight:
(i)from…

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 Sargent and Selwyn

Details

AGLC: Sargent and Selwyn [2016] FCCA 1987
Case: [2016] FCCA 1987
Decision Date: 28 July 2016

CaseChat Overview and Summary

This matter concerned parenting orders for the child X, born in 2012, between the Applicant Father and the Respondent Mother. The court was required to determine the specific arrangements for the child's living arrangements, time spent with each parent, and holiday arrangements, as well as ancillary matters concerning the child's education and travel.

The court was tasked with establishing a comprehensive parenting plan that would evolve as the child grew, from infancy through to commencing school and beyond. Key issues included the division of parental responsibility, the child's primary residence, and the detailed allocation of time between the parents across different periods, including weekdays, weekends, and school holidays. The court also needed to address practical considerations such as changeover arrangements, medical care, and the process for obtaining a passport and undertaking overseas travel.

The court, by consent of the parties, discharged all earlier parenting orders and made new orders that provided for equal shared parental responsibility. The child X was ordered to live with the Mother, with detailed provisions for the Father's time with the child, which progressively increased from the date of the orders until the child commenced school, and thereafter during school terms and holidays. The orders also included specific arrangements for public holidays, birthdays, Father's Day, and Mother's Day, as well as injunctions regarding the recording of changeovers and prohibitions on physical chastisement. Further orders addressed the enrolment in specific schools, the process for selecting primary and secondary schools, and the arrangements for obtaining and holding the child's passport, including provisions for overseas travel.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2012.

The child X is to live with the Mother.

The child X is to spend time with the Father from the date of these Orders until 31 December 2015 as follows:

(a) In the first week of each fortnight:

(i) from 8:30 am to 5:30 pm on Tuesday; and

(ii) from immediately after pre-school on Thursday until 5:30 pm on Friday;

(b) In the second week of each fortnight:

(i) From 8:30 am to 5:30 pm on Tuesday; and

(ii) From 8:30 am to 6:00 pm on Saturday.

(c) For changeovers where the child goes from the care of one parent to the care of the other on Tuesdays and Fridays, the parent delivering the child will deliver him to the (omitted) Preparatory School at (omitted) and the parent collecting the child will collect him from (omitted) Preparatory School;

(d) On Saturdays or on days when the child does not attend pre-school changeovers will take place at (omitted);

(e) For two periods each of four (4) days including three overnight periods from 9:00 am on the first day until 5:00 pm on the fourth day, for which purpose the father is to give the mother at least six (6) weeks’ notice of the days he intends to exercise the times provided for in this Order;

(f) The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the father on either a Thursday, Friday or a Saturday in accordance with these Orders;

(g) The Father’s time with the child is to be suspended for two (2) periods each of four (4) consecutive days at least two months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.

The child X is to spend time with the Father from 1 January to 30 June 2016 as follows:

(a) In the first week of each fortnight:

(i) from 8:30 am to 5:30 pm on Tuesday; and

(ii) from immediately after pre-school on Thursday until commencement of pre-school if the child is attending pre-school on that or 5:30 pm on Friday;

(b) In the second week of each fortnight:

(i) from 8:30 am to 5:30 pm on Tuesday; and

(ii) from 8:30 am on Friday or if the child is attending pre-school that day from immediately after pre-school until 5:00 pm on Sunday.

(c) For two periods each of five (5) days including four overnight periods from 9:00am on the first day until 5:00pm on the fifth day for which purpose the Father is to give the Mother at least six (6) weeks’ notice of the days he intends to exercise the times provided for in this Order;

(d) The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the Father on a Thursday, Friday or a Saturday in accordance with these Orders;

(e) The Father’s time with the child is to be suspended for two periods each of five (5) consecutive days at least two (2) months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.

The child X is to spend time with the Father from 1 July 2016 until the child commences school as follows:

(a) In the first week of each fortnight from immediately after pre-school on Thursday until 8:30 am or the commencement of pre-school on Monday if the child is attending pre-school on that day; and

(b) In the second week of each fortnight From immediately after pre-school on Thursday or 4:15 pm if the child is not attending pre-school that day until 8:30 am or the beginning of pre-school on Friday;

(c) For two (2) periods each of six (6) consecutive days including five (5) overnight periods from 9:00 am on the first day until 5:00pm on the sixth day for which purpose the father is to give the mother at least six (6) weeks’ notice of the days that he intends to exercise the times provided for in this Order;

(e) The Father’s time with the child is to be suspended for two periods each of six (6) consecutive days at least two (2) months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.

For the purposes of Orders (5) and (6) above changeovers where the child goes from the care of one parent to the care of the other on Tuesdays and Fridays will take place at (omitted) Preparatory School and on all other occasions will take place at (omitted).

The child X is to spend time with the Father from the commencement of the first day of the child’s first school term as follows:

(a) In the first week of each fortnight during the school term from immediately after school on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the following Tuesday morning;

(b) In the second week of each fortnight during the school term from immediately after school on Thursday until the commencement of school the following morning;

(c) For one half of all school holidays in 2017 on a week about basis by agreement between the parties and failing agreement the second week;

(d) For one half of all school holidays in 2018 on a week about basis by agreement between the parties and failing agreement the first week commencing at 9:00am on the Saturday immediately after the last day of the school term PROVIDED THAT during the Christmas/January school holidays the child will spend time with each party on a two (2) week alternating basis; and

(e) For one half of all school holidays in 2019 and every year thereafter by agreement between the parties and failing agreement the first half in even numbered years and the second half in odd numbered years.

For the purpose of the immediately preceding Order changeovers where the child goes from the care of one parent to the care of the other parent on school days will take place at the child’s school and at all times will take place at (omitted).

10.

The additional times spent by the child with either the Mother or the Father in accordance with Orders (4)(e),(4)(g), (5)(c), (5)(e),(6)(c) and (6)(e) are not to include Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day, Good Friday and Easter Sunday in any year.

11.

The child X will also spend time with the Father:

(a) From 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2015 and all odd numbered years thereafter; and

(b) From 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2016 and all even numbered years thereafter.

12.

The child X will spend time with the parent with whom he is not otherwise spending time in accordance with the holiday time provided for in these Orders from 5:00pm on the day prior to his birthday until 1:00pm on the child’s birthday.

13.

In the event that the child X is not otherwise spending time with the Father in accordance with these Orders, then he will spend time with the Father from 5:00pm on the day before Fathers’ Day until 5:00pm on Fathers’ Day in each year.

14.

In the event that the child X is not otherwise spending time with the Mother in accordance with these Orders, then he will spend time with the Mother from 5:00pm on the day before Mothers’ Day until 5:00pm on Mothers’ day in each year.

15.

For the purpose of Orders (11), (12) (13) and (14) changeovers will take place at (omitted) or such other place as the parties may agree.

16.

The parties must ensure that the child X attends pre-school on his designated pre-school days no later than 9:00am and that he is not collected from pre-school prior to 4:15pm other than in the event of the child’s illness or injury.

17.

Each party must notify the other as soon as is reasonably possible of any illness or injury sustained by the child whilst the child is in his or her care.

18.

Each party must advise the other of a telephone contact number where he or she may be reached in case of an emergency.

19.

The parties must ensure that the child X is treated by Dr A of (omitted) Medical Centre for any illness or injury except in cases of emergency and advise the other of the name and address of any other doctor who provides medical treatment for the child.

20.

Neither party is to use any form of physical chastisement or discipline on the child.

21.

The parties are restrained by injunction from recording any changeover of the child where the child goes from the care of one party to the other.

AND IT IS ORDERED BY CONSENT THAT

22.

The Father is to sign all documents and do all things necessary to enrol the child X in (omitted) School and (omitted) School.

23.

The parties will confer by no later than 31 May 2016 to decide on a primary school for the child X to commence in 2017 and by 30 May 2024 to decide on a secondary school for the child. In the event that the parties do not agree on a primary school for the child by 31 May 2016 then the parties will attend meditation with Dr C or any other agreed mediator or counsellor to assist in the determination of a primary school for the child.

24.

The parties are to do all acts and things necessary to obtain an Australian passport for the child and in doing so:

(a) the party requiring the passport will in the first instance obtain and complete the application and thereafter provide the application to the other party;

(b) within seven (7) days of receiving the application the other party will complete any necessary details on the application and return the document together with half the necessary fee;

(d) the Mother will hold the child’s passport and will release the passport to the father for the purpose of travelling with the child as agreed between the parties from time to time or in accordance with these Orders.

25.

Either party is permitted to take the child overseas for a holiday and in doing so:

(a) The travel shall be during the period that the child would be with the travelling parent in accordance with these Orders.

(b) The parties will ensure that so far as practical these occasions are to coincide with school holidays.

(c) Each party will give the other party as much notification as possible of their intention to travel overseas with the child and in any event, will give not less than 6 weeks written notice of such intention.

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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