Sargent and Selwyn (No.2) - [2017] FCCA 3049

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARGENT & SELWYN (No.2)

[2017] FCCA 3049

Catchwords:
FAMILY LAW – Children – interim hearing – best interest decision.

Legislation:

Family Law Act 1975, ss.60CC, 65DAA

Cases cited:

Sargent & Selwyn [2017] FamCAFC 228

Goode & Goode [2006] FamCA 1346

Banks & Banks [2015] FamCAFC 36

Applicant:

MR SARGENT

Respondent:

MS SELWYN

File Number:

SYC 7405 of 2013

Judgment of:

Judge Baumann

Hearing date:

5 December 2017

Date of Last Submission:

5 December 2017

Delivered at:

Brisbane

Delivered on:

7 December 2017

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That the mother and father have equal shared parental responsibility for the child, [X] born 2012 (“the child”)
That the child shall spend time with the parents for one half of all school holidays in 2017 on a week about basis by agreement between the parents.
That the child spend time with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2017.
That the child shall 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.
That changeovers that are not scheduled to take place at school will take place at (store omitted) or such other place as the parents may agree.
That each parent 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.
That each parent must advise the other of a telephone contact number where he or she may be reached in case of an emergency.
That the parents must ensure that the child is treated by Dr A of Suburb A 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.
That neither parent is to use any form of physical chastisement or discipline on the child.
That the parents are restrained by injunction from recording any changeover of the child where the child goes from the care of one parent to the other.
That 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 parents from time to time or in accordance with these Orders.
That either parent 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 parents will ensure that so far as practicable these occasions are to coincide with school holidays; and
(c)each parent will give the other parent as much notification as possible of their intention to travel overseas with the child, and in any…

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 (No.2)

Details

AGLC: Sargent and Selwyn (No.2) [2017] FCCA 3049
Case: [2017] FCCA 3049
Decision Date: 7 December 2017

CaseChat Overview and Summary

In *Sargent and Selwyn (No.2)*, Judge Baumann of the Federal Circuit Court of Australia considered orders relating to the parental responsibility, living arrangements, and time spent with a child born in 2012. The dispute concerned the arrangements for the child following separation of the parents.

The court was required to determine the specific orders concerning equal shared parental responsibility, the child's living arrangements, and the detailed schedule for the child to spend time with each parent, including during school holidays and specific dates. Further issues included provisions for medical treatment, communication between parents regarding the child's health, restrictions on physical discipline, and arrangements for international travel and passport custody. The court also set directions for future proceedings, including the filing of evidence, case outlines, and the potential cross-examination of a family report writer.

The court made orders reflecting a shared parental responsibility model, with the child to live with the mother. A detailed schedule was established for the child's time with the father during school terms, and specific provisions were made for holiday periods, including Christmas Eve and Christmas Day. The court also imposed injunctions restraining the recording of changeovers and set out requirements for notification and consent regarding overseas travel. The proceedings were adjourned for further directions pending the availability of a family report, with a final hearing date set for April 2018.

Orders

Orders of the court

That the mother and father have equal shared parental responsibility for the child, [X] born 2012 (“the child”)

That the child shall spend time with the parents for one half of all school holidays in 2017 on a week about basis by agreement between the parents.

That the child spend time with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in 2017.

That the child shall 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.

That changeovers that are not scheduled to take place at school will take place at (store omitted) or such other place as the parents may agree.

That each parent 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.

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

That the parents must ensure that the child is treated by Dr A of Suburb A 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.

That neither parent is to use any form of physical chastisement or discipline on the child.

10.

That the parents are restrained by injunction from recording any changeover of the child where the child goes from the care of one parent to the other.

11.

That 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 parents from time to time or in accordance with these Orders.

12.

That either parent 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 parents will ensure that so far as practicable these occasions are to coincide with school holidays; and

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

13.

That the mother have leave to remove the child from the Commonwealth of Australia on 7 December 2017 for one (1) week to undertake a holiday in (country omitted).

THE COURT ORDERS UNTIL FURTHER ORDER:

14.

That the child shall live with the mother.

15.

That the child shall spend time with the father from the commencement of the first day of the child’s school term commencing January 2018 as follows:

(a) In the first week of each fortnight during the school term from immediately after school on Thursday 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; and

(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.

16.

That these proceedings be adjourned for any further directions at 9.30am on 22 February 2018 before Judge Henderson in the Federal Circuit Court of Australia at Sydney (when it is anticipated the family report ordered on 1 December 2017 will be available).

Trial directions

17.

That these proceedings be set down for final hearing for not more than two (2) days commencing at 10.00am on 12 and 13 April 2018 before Judge Mead in the Federal Circuit Court of Australia at Sydney.

18.

That each party file and serve on each other party no later than 4.00pm on 22 March 2018:

(a) one (1) consolidated affidavit of evidence in chief; and

(b) one (1) affidavit of each witness intended to be relied upon at trial.

19.

That each party file and serve on each other party no later than 4.00pm on 5 April 2018, a case outline setting out:

(a) a precise minute of the final orders sought;

(b) a relevant chronology; and

20.

That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

21.

That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 22 March 2018.

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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