Saville and Meyer - [2012] FMCAfam 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAVILLE & MEYER

[2012] FMCAfam 276

FAMILY LAW – Children – contact.

Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61C, 61DA, 64B, 65DAA
Liquor Act 2007 (NSW)

Rice v Asplund (1979) 6 FamLR 570

Goode & Goode (2006) FLC 93-289

Applicant:

MS SAVILLE

Respondent:

MR MEYER

File Number:

NCC 323 of 2008

Judgment of:

Myers FM

Hearing dates:

15, 16 and 17 February 2012

Date of Last Submission:

17 February 2012

Delivered at:

Newcastle

Delivered on:

17 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

The Charlestown Law Firm

Solicitors for the Respondent:

Self Represented

Counsel for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Newcastle

ORDERS

All previous parenting orders in relation to the child [X] born [in] 2005 ("[X]") are discharged.
The mother and father are to have equal shared parental responsibility for [X].
[X] is to live with the mother.
Subject to order 9, [X] is to live with the Father as follows:
(a)On weekends provided for at order 29 below from Thursday if Friday is a public holiday or pupil free day from the conclusion of [X]’s school until the commencement of school on the following Monday or Tuesday if the Monday is a public holiday or pupil free day.
(b)In, and from, the school holidays at the commencement of the term 1 gazetted school holidays in 2013 and thereafter as follows:
(i)In school holidays:
(ii)At the end of terms 1, 2 and 3 on the last days of school and for seven nights and [X] will be returned to the mother at 9.00a.m.on the 8^th day.
(iii)At the end of term 4 gazetted Christmas school holidays commencing on Boxing Day 26 December at 9 a.m. for 21 nights with [X] returned to the mother at 9 a.m. on 16 January, commencing in 2013 and then in each year.
(c)If [X] is not otherwise spending time with the Father, on [X]’s birthday from 3.00pm until 7.00pm, only if the birthday falls on a school day;
(d)If [X] is not otherwise spending time with the Father on the Father’s birthday, [date omitted], from 3.00pm until 7.00pm, only if the birthday falls on a school day;
(e)If [X] is not otherwise spending time with the Father on the weekend of Father's Day, then for the Father's Day weekend collection at school Friday until the commencement of school on Monday;
(f)If [X] is not otherwise spending time with the Father for a full weekend from Friday after school until Monday morning on the occasions of the end of Ramadan and the end of the Haj pilgrimage weekend provided that the dates of these weekends are notified to the mother at least six (6) months prior to their occurrence.
(g)From Friday after school until Monday before school in the event of the father’s wedding, engagement or the wedding of the father’s sister, [name omitted].
(h)On the occasions of the…

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 Saville and Meyer

Details

AGLC: Saville and Meyer [2012] FMCAfam 276
Case: [2012] FMCAfam 276
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case of Saville and Meyer was heard in the Family Court of Australia, where the primary concern was the arrangement of parenting orders for a child born in 2005. The parents were in dispute over the specific details of the child’s living arrangements and the need for supervised contact. The court was required to address the allocation of parental responsibilities and the specific conditions under which the child would live with each parent.

The legal issues before the court included the determination of equal shared parental responsibility, the specific living arrangements for the child, and the necessity for supervised contact due to concerns about drug use by one of the parents. The court also had to consider the implications of public holidays, school terms, and significant family events such as birthdays and funerals on the parenting schedule. Additionally, the court needed to decide whether and under what circumstances the child would be required to undergo drug testing.

The court ruled that both parents would have equal shared parental responsibility for the child, who would primarily live with the mother. The father was granted specific visitation rights, including weekends, school holidays, and special occasions such as birthdays and family funerals. To ensure the safety and well-being of the child during contact, the court mandated that all contact between the father and the child be supervised by the Rainbow’s Children's Contact Service, unless otherwise agreed upon in writing by both parties. The court also ordered the father to undergo supervised drug testing at least once a month until a specified date, to address the mother's concerns about drug use. These measures were put in place to safeguard the child’s welfare while allowing the father to maintain a relationship with his child.

The final orders of the court included discharging all previous parenting orders, establishing equal shared parental responsibility, setting out detailed living arrangements and visitation schedules, mandating supervised contact, and requiring the father to undergo drug testing. These orders reflect a balanced approach to ensuring the child's safety and well-being while allowing the father to maintain a meaningful relationship with his child.

Orders

Orders of the court

All previous parenting orders in relation to the child [X] born [in] 2005 ("[X]") are discharged.

The mother and father are to have equal shared parental responsibility for [X].

[X] is to live with the mother.

Subject to order 9, [X] is to live with the Father as follows:

(a) On weekends provided for at order 29 below from Thursday if Friday is a public holiday or pupil free day from the conclusion of [X]’s school until the commencement of school on the following Monday or Tuesday if the Monday is a public holiday or pupil free day.

(b) In, and from, the school holidays at the commencement of the term 1 gazetted school holidays in 2013 and thereafter as follows:

(i) In school holidays:

(ii) At the end of terms 1, 2 and 3 on the last days of school and for seven nights and [X] will be returned to the mother at 9.00a.m.on the 8th day.

(iii) At the end of term 4 gazetted Christmas school holidays commencing on Boxing Day 26 December at 9 a.m. for 21 nights with [X] returned to the mother at 9 a.m. on 16 January, commencing in 2013 and then in each year.

(c) If [X] is not otherwise spending time with the Father, on [X]’s birthday from 3.00pm until 7.00pm, only if the birthday falls on a school day;

(d) If [X] is not otherwise spending time with the Father on the Father’s birthday, [date omitted], from 3.00pm until 7.00pm, only if the birthday falls on a school day;

(e) If [X] is not otherwise spending time with the Father on the weekend of Father's Day, then for the Father's Day weekend collection at school Friday until the commencement of school on Monday;

(f) If [X] is not otherwise spending time with the Father for a full weekend from Friday after school until Monday morning on the occasions of the end of Ramadan and the end of the Haj pilgrimage weekend provided that the dates of these weekends are notified to the mother at least six (6) months prior to their occurrence.

(g) From Friday after school until Monday before school in the event of the father’s wedding, engagement or the wedding of the father’s sister, [name omitted].

(h) On the occasions of the funerals of members of the paternal family with such time to commence at 4.30pm on the eve of the funeral and conclude on the day after the funeral with provision being made for [X] to attend school if the funerals occur during school time.

(i) It is agreed between the parties that if the father has any further children [X] will spend time with the father on those children’s birthdays as similarly specified for [Y]’s birthday in Order 5b.

(j) As otherwise agreed between the parties, in writing, from time to time.

The Father’s time with [X] is suspended:

(a) If Mother's Day falls on a weekend when [X] is otherwise with the Father, then [X]’s time with the father for that weekend will be suspended and the father’s time with [X] shall commence on the following weekend.

(b) On [date omitted] in each year, the birthday of the child, [Y], from 9 a.m. on that day until 5 p.m. that day.

(c) On the occasion of the funerals of members of the maternal family with such time to commence at 4.30pm on the eve of the funeral and conclude on the day after the funeral with provision being made for [X] to attend school if the funerals occur during school time.

Orders 4 and 5 and Orders 25-33 are to be implemented as follows:

(a) For orders 29, by the father collecting [X] from school at the commencement of [X]'s time with the father and the father delivering [X] to school at the conclusion of [X]'s time with the father.

(b) Using the services of the Rainbow's Children's Contact Service at [address omitted] NSW ("Rainbows"); save that

(d) To engage the services of Rainbows, the parties must:

(i) Within 7 days, contact Rainbows and arrange an appointment for assessment for suitability for supervision;

(ii) Comply with all appointments made by Rainbows for the parties' and [X]'s attendances on Rainbows (in relation to, both, general appointments and [X] spending time with the Father);

(iii) Comply with all rules, requests and directions of Rainbows; and

(iv) Pay, in equal shares, the costs of Rainbows as, and when, those costs fall due.

(e) As otherwise agreed between the parties, in writing, from time to time.

From the date of these orders until 16th August 2012, the father must, at his cost, undertake supervised drugs screen urinalysis (testing for all illegal drugs) as follows:

(a) On no more than one occasion each calendar month, the Independent Children’s Lawyer, (ICL), may give notice to the father, by a SMS text message and email, that he is required to undertake supervised urine analysis;

(b) Within 24 hours of the date of such notice, the father must undertake supervised urine analysis;

(c) Within 7 days of the father undertaking supervised urine analysis, the father must provide a copy of the results of the supervised urine analysis to the ICL who will forward such result to the mother.

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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