Sawyer & Sawyer & Anor - [2011] FMCAfam 780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAWYER & SAWYER & ANOR

[2011] FMCAfam 780

FAMILY LAW – Children aged 11, 8 & 6 – presumption of equal shared parental responsibility – equal time regime – whether such a regime in best interests of children concerned – high conflict between parties – what is reasonably practicable – communication skills – weight to be given to views of children, particularly oldest child, provided to family report writer – children’s maturity and level of insight – assessment of other section 60CC factors – oldest child not biological child of applicant but regards him as father – second respondent oldest child’s biological father – biological father has had relationship with child prior to these proceedings – meaningful relationship – best interests.

Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 65DAA, 65DAC, 65DAE

Sawyer & Sawyer [2010] FMCAfam 329
Goode & Goode (2006) FLC 93-286
C & S [1998] FamCA 66
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA4
Godfrey v Sanders 208 FLR 287
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Bright v Bright (1995) FLC 92-570
Astor & Astor [2007] FamCA 355

Applicant:

MR SAWYER

First Respondent:

MS SAWYER

Second Respondent:

MR RICHARDS

File Number:

ADC 427 of 2010

Judgment of:

Brown FM

Hearing dates:

8, 9, 23 & 24 June 2011

Date of Last Submission:

19 July 2011

Delivered at:

Adelaide

Delivered on:

10 August 2011

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

Boril Olds Solicitors

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Polly Dixon & Co

Counsel for the Second Respondent:

Mr Richards in person

ORDERS

Mr Sawyer “the father” and Ms Sawyer “the mother” have equal shared parental responsibility for the children [X] “[X]” born [in] 2000; [Y] “[Y]” born [in] 2002; and [Z] “[Z]” born [in] 2005 (herein referred to as “the children”).
The mother and the father are to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children, which include, but are not limited to, the following issues:
Øthe children’s education (both current and future);
Øthe children’s religious and cultural upbringing;
Øthe children’s health;
Øthe children’s names;
Øchanges to the children’s living arrangements that make it significantly more difficult for the children to spend time with one or other of their parents.
The children live with the father.
The mother spend time with the children as follows subject to other orders made herewith dealing with special occasions:
(a)During each school term on alternate weekends of each fortnight from after school on Friday until the recommencement of school the following Monday;
(b)During school terms in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday;
(c)For the first week of all short school holidays commencing at the conclusion of school on the Friday…

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 Sawyer & Sawyer & Anor

Details

AGLC: Sawyer & Sawyer & Anor [[2011]] FMCAfam 780
Case: [2011] FMCAfam 780
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of Sawyer & Sawyer & Anor involved the parents, Mr. Sawyer (the father) and Ms. Sawyer (the mother), of three children, X (11), Y (8), and Z (6). The primary dispute centred on the allocation of parental responsibility and the time-sharing arrangement between the parents. The court was required to determine whether an equal shared parental responsibility regime, including an equal time arrangement, was in the best interests of the children, given the high level of conflict between the parents.

The legal issues before the court included the presumption of equal shared parental responsibility under section 60B of the Family Law Act, the criteria for determining the best interests of the children under section 60CC, and the weight to be given to the views of the children, particularly the eldest child who regards the father as his father despite not being his biological child. The court also considered the views of the biological father of the eldest child, who had maintained a relationship with the child prior to these proceedings.

The court's reasoning was grounded in the statutory framework provided by the Family Law Act. It assessed the views of the children, taking into account their ages, maturity, and level of insight. The court recognised the importance of the eldest child's perspective, given his attachment to the father. It also evaluated the communication skills and conflict levels between the parents, concluding that an equal shared parental responsibility regime was appropriate, despite the high conflict, because it was in the children's best interests. The court ordered that the children live primarily with the father, with the mother having specified visitation rights and obligations, including regular phone contact.

The final orders of the court established equal shared parental responsibility between the parents, outlined a detailed time-sharing arrangement for the children, and included provisions for communication, health information sharing, and restrictions on denigration of the other parent in the presence of the children. The court also included specific provisions for the biological father's time with the eldest child and detailed arrangements for special occasions such as Christmas and Easter.

Orders

Orders of the court

Mr Sawyer “the father” and Ms Sawyer “the mother” have equal shared parental responsibility for the children [X] “[X]” born [in] 2000; [Y] “[Y]” born [in] 2002; and [Z] “[Z]” born [in] 2005 (herein referred to as “the children”).

The mother and the father are to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children, which include, but are not limited to, the following issues:

Ø the children’s education (both current and future);

Ø the children’s religious and cultural upbringing;

Ø the children’s health;

Ø the children’s names;

Ø changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with one or other of their parents.

The children live with the father.

The mother spend time with the children as follows subject to other orders made herewith dealing with special occasions:

(a) During each school term on alternate weekends of each fortnight from after school on Friday until the recommencement of school the following Monday;

(b) During school terms in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday;

(c) For the first week of all short school holidays commencing at the conclusion of school on the Friday of the last day of school term and concluding at 6:00pm on the middle Saturday of such holiday;

(d) For one half of each of the end of school year Christmas school holiday period (subject to the arrangements for special occasions specified hereunder) the halves to be agreed between the parties and failing agreement to be the second half in the 2011/2012 school holiday period and each alternate year thereafter and the first half in the 2012/2013 year school holiday and each alternate year thereafter;

(e) At any other times as agreed between the parties.

During the periods the children are in the care of their father the mother have telephone communication with the children each Tuesday, Friday and Sunday between 7:00pm and 8:00pm with the mother to initiate the call to a telephone number to be nominated to her by the father.

During the periods the children are in the care of their mother the father have telephone communication with the children each Wednesday and Saturday between 7:00pm and 8:00pm with the father to initiate the call to a telephone number to be nominated to him by the mother.

Mr Richards “the biological father” spend time with [X] subject to other orders made herewith dealing with [X] spending special occasions with the father and mother as follows:

(a) During school terms on two weekends per term from after school on Friday until school recommences the following Monday the weekends to be as agreed between the father and the biological father and to occur on weekends on which [X] would otherwise be in the care of the father pursuant to these orders.

(b) During each mid year school holiday and during each end of year school holiday for a period of five consecutive days on each such occasion the specific days to be agreed between the father and the biological father and to occur during periods of each such school holiday during which [X] would otherwise be in the care of the father pursuant to these orders.

In the event the father and mother are unable to agree in respect of arrangements for the children to spend time with each of them during the period of Christmas in any year the following provisions will apply:

(a) The children spend time with the mother from midday on 24 December 2011 until 3:00pm on 25 December 2011 and each alternate year thereafter and spend time with the father from 3:00pm on 25 December 2011 until 9:00pm on 26 December 2011 and each alternate year thereafter.

(b) The children spend time with the father from midday on 24 December 2012 until 3:00pm on 25 December 2012 and each alternate year thereafter and spend time with the mother from 3:00pm on 25 December 2012 until 9:00pm on 26 December 2012 and each alternate year thereafter.

In the event the father and mother are unable to agree in respect of arrangements for the children to spend time with each of them during the period of Easter in any year the following provisions will apply:

(a) The children spend from the conclusion of school on Maundy Thursday 2012 until 6:00pm on Easter Saturday in 2012 with the father and each alternate year thereafter and from 6:00pm on Easter Saturday 2012 until 6:00pm on Easter Monday 2012 and each alternate year thereafter with the mother.

(b) The children spend from the conclusion of school on Maundy Thursday 2013 until 6:00pm on Easter Saturday in 2013 with the mother and each alternate year thereafter and from 6:00pm on Easter Saturday 2013 until 6:00pm on Easter Monday 2013 and each alternate year thereafter with the father.

10.

The mother’s time with the children is suspended on Father’s Day from 10:00am to 5:00pm if Father’s day falls within the mother’s time and the children are to spend time with the father for such period.

11.

The father’s time with the children is suspended on Mother’s day from 10:00am to 5:00pm if Mother’s day falls within the father’s time and the children are to spend time with the mother for such period.

12.

In order to avoid any misunderstanding the time the mother spends with the children pursuant to order 4(a) hereof and (b) hereof, is suspended during all school holidays and will recommence with the beginning of each school term with time on Wednesday in the event the children have been in the care of the mother for the second half of the preceding school holiday or with weekend time in the event the children have been in the care of the father for the second half of the preceding school holiday.

13.

In order to avoid any misunderstanding the division of the end of year school holiday periods referred to in order (4)(d) hereof is to be calculated by reference to the fact that each such period is deemed to commence at 9:00am on the first Saturday after school has ceased for the year and end at 6:00pm on the last Sunday prior to the commencement of school the following year and the mid point and handover time (unless the parties agree otherwise) will be 6:00pm on the fourth Saturday during the holiday period.

14.

All handovers that cannot occur at the children’s school shall take place outside the [T] Police Station.

15.

The parties, including the biological father, are at liberty to make arrangements for the children to spend time with any of the other parties to these orders, independent of these orders, at any other times and on any other conditions as they may agree from time to time. It being noted however that the mother does not have to consent to any arrangement reached between the father and the biological father regarding [X] spending time with the biological father.

16.

The mother and father shall;

(a) keep the other parent informed at all times of their residential address and contact details, including details of landline and mobile telephone numbers and email addresses;

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors, who treat the children and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the children;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children. This order authorises any treating medical practitioner to release information concerning the children’s medical condition to the other parent.

17.

The father shall advise the biological father in the event that he changes his residential address or other contact details in respect of [X] and keep the biological father informed of all relevant issues relating to [X]’s health and educational performance.

18.

The mother and father are directed, by virtue of this order, to authorise the principal of each school attended by the children from time to time to give to each parent information about the children’s educational progress and any necessary information relating to extramural activities in which the children are engaged and supply each of them with copies of school reports, photographs, certificates and awards obtained by the children provided that each such document is to be supplied at the cost of the parent receiving it.

19.

The parties comply with any treatment regime recommended for the child [Z] by the Haematology Section of the [omitted] Hospital and that each informs the other of any changes to the treatment regime by entry in the communication book.

20.

The parties (including the biological father) be restrained and an injunction in hereby granted restraining each of them from:

(a) Removing the children from the Commonwealth of Australia without the prior written consent of the other party;

(b) Changing the said children’s school from [T] without the prior written consent of the other party;

(d) Causing or permitting any other person to denigrate the other of them in the presence or hearing of the said children.

21.

The father and mother exchange all pertinent information concerning the health, education, sporting activities and other extramural commitments and in particular so far as [Z] is concerned advise the other if [Z] suffers a bleed which requires additional or any emergency treatment in writing by means of a communication book which is to be exchanged between them at each handover of the children.

22.

Subject to orders (22) and (23) hereunder the father and the mother each have the right to attend at the children’s school for all events that are routinely attended by parents, including parent/teacher interviews.

23.

The mother is restrained and an injunction is issued restraining her from attending the children’s sports training and Saturday sporting matches on days when the children are in the care of the father pursuant to these orders.

24.

The father is restrained and an injunction is issued restraining him from attending the children’s sports training and Saturday sporting matches on days when the children are in the care of the mother pursuant to these orders.

25.

All applications are otherwise dismissed.

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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