Scales and Seddon - [2016] FCCA 2894

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCALES & SEDDON

[2016] FCCA 2894

Catchwords:
FAMILY LAW –Young parents living large geographical distance apart – issues of parental capacity of both parents including/arising out of the young child not having spent overnight time with his Father – both parents rely heavily on their parents’ assistance and support – until well into the final stages of the trial the Mother held a view of the Father that he was/would be a risk to the child whilst in his care – the views of the Mother about the Father were formed on the basis of the Father disclosing to the Mother that he had an incestuous same-sex relationship with his cousin when he was a teenager – no relevant risk to the child – Mother finally conceded that the Father posed no relevant risk to the care and welfare of the child – Father seeking a change in residence.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(3)(d), (f), (i), 65DAA

Cases cited:
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MR SCALES

Respondent:

MS SEDDON

File Number:

CAC 1837 of 2014

Judgment of:

Judge Neville

Hearing dates:

4 and 5 February 2016

Date of Last Submission:

26 April 2016

Delivered at:

Canberra

Delivered on:

11 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr C Wilson

Solicitors for the Applicant:

Crampton Legal

Counsel for the Respondent:

Ms J Haughton

Solicitors for the Respondent:

Mazengarb Family Lawyers

Solicitor/Advocate for the Mrs G Yeend
Independent Children’s Lawyer:

Solicitors for the Independent Yeend & Associates
Children’s Lawyer:

ORDERS

The Mother and the Father have equal shared parental responsibility for the child, X (born (omitted) 2012) (“the child”).
The child live with the Mother.
The child spend time with the Father at the following times:
(a)From 9.00am until 2.00pm on the first three Saturdays following the making of these Orders at a location not further than 100km from (omitted) with the changeover to occur at (omitted);
(b)Thereafter on the first weekend and third weekend of each month from 9.00am to 2.00pm on Saturday and Sunday at a location not further than 100km from (omitted) with changeover to be at (omitted);
(c)Commencing in February 2017, on the first and third weekend of each month from 9.00 Saturday until 3.00pm Sunday at a location not further than 100km from (omitted) with the changeover to be at (omitted);
(d)Commencing in NSW School Term 1, 2017:
(i)From 5.00pm Friday until 5.00pm Sunday on the first weekend of each month with changeover to occur at (omitted) unless otherwise agreed between the parties;
(ii)In the event that a Public Holiday occurs on a weekend that the father is not exercising time, the father may instead elect to exercise the time in Order 3. (c) (i) above on that weekend and the time will commence at 5.00pm Thursday if the Public Holiday…

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 Scales and Seddon

Details

AGLC: Scales and Seddon [2016] FCCA 2894
Case: [2016] FCCA 2894
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the matter of *Scales and Seddon*, heard by Judge Neville, the dispute concerned parenting arrangements for the child, X. The orders reflect a resolution reached between the Mother and the Father regarding their respective roles and responsibilities in the child's life.

The court was required to determine the terms of parental responsibility, the child's living arrangements, and the specific times the child would spend with each parent. Additionally, the court addressed communication protocols between the parents, restrictions on disparaging remarks about each other in the child's presence, and specific provisions regarding the disclosure of sensitive information. The court also considered the appointment of an Independent Children's Lawyer and the finalisation of extant applications.

The court ordered that the Mother and Father share equal parental responsibility for the child, with the child to live with the Mother. The orders then detailed a phased approach to the Father's time with the child, commencing with limited weekend contact and progressively increasing to include overnight stays and a division of school holidays. Specific provisions were made for Father's Day and Mother's Day, as well as Christmas. The court also imposed mutual restraints on the parties regarding abusive language and the discussion of proceedings in front of the child, with a specific prohibition on the Mother discussing certain sensitive matters with the child. Further orders mandated ongoing communication about the child's health and contact details, and the appointment of each parent as a contact for the child with relevant institutions. The Independent Children's Lawyer was discharged, and all outstanding applications were dismissed, finalising the matter.

Orders

Orders of the court

The Mother and the Father have equal shared parental responsibility for the child, X (born (omitted) 2012) (“the child”).

The child live with the Mother.

The child spend time with the Father at the following times:

(a) From 9.00am until 2.00pm on the first three Saturdays following the making of these Orders at a location not further than 100km from (omitted) with the changeover to occur at (omitted);

(b) Thereafter on the first weekend and third weekend of each month from 9.00am to 2.00pm on Saturday and Sunday at a location not further than 100km from (omitted) with changeover to be at (omitted);

(c) Commencing in February 2017, on the first and third weekend of each month from 9.00 Saturday until 3.00pm Sunday at a location not further than 100km from (omitted) with the changeover to be at (omitted);

(d) Commencing in NSW School Term 1, 2017:

(i) From 5.00pm Friday until 5.00pm Sunday on the first weekend of each month with changeover to occur at (omitted) unless otherwise agreed between the parties;

(ii) In the event that a Public Holiday occurs on a weekend that the father is not exercising time, the father may instead elect to exercise the time in Order 3. (c) (i) above on that weekend and the time will commence at 5.00pm Thursday if the Public Holiday occurs on the Friday and conclude at 5.00pm Monday if the Monday is a Public Holiday;

(iii) From 5.00pm Friday until 5.00pm Sunday on the third weekend of each month at a location not further than 100km from (omitted) with changeover to occur at (omitted);

(iv) For one half of all New South Wales school holidays as agreed and failing agreement, the first half in years ending in an even number and the second half in years ending in an odd number with changeovers to take place at 4pm on the middle Saturday of the holiday period;

(e) Such other times as agreed by the parties.

The child shall spend the Father’s Day weekend with the Father, and the Mother’s Day weekend with the Mother.

The child shall spend time with the Mother from 4:00pm on 24 December until 4:00pm on 26 December in years ending in even numbers.

The child shall spend time with the Father from 4:00pm on 24 December until 4:00pm on 26 December in years ending in odd numbers.

In the event that the father is unable to exercise time pursuant to these Orders he will notify the mother as soon as is practicable.

Each party will encourage and facilitate telephone communication between the child and the other party while the child is in their care, as requested by the child but no less frequently than twice per week with calls commencing no later than 7.30pm.

Each of the parties be restrained from:

(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings (including expert reports) to, with or in the presence or hearing of the child and from permitting any other person to do so; and

(c) Each party be restrained from saying unpleasant or unkind things of or about the other in the presence of or hearing of the child and will not permit any other person to do so.

10.

The Mother be restrained from ever discussing the Father’s sexual engagement with his cousin with the child, and shall ensure, to the best of her ability, that family members or other people are also restrained from doing so.

11.

Each party keep the other informed of changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the child.

12.

Each parent is to advise the other of any medical issue that impacts, or is likely to impact, on their capacity to care properly for X in writing, within seven (7) days of diagnosis.

13.

Each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email address and where possible provide the other parent with seven (7) days’ notice of any intended change to these details.

14.

Each party nominate the other parent as a contact for the child with any medical practitioner, school or organisation that the child attends upon and authorise them to communicate with the other parent about the child.

15.

Within twenty eight (28) days the mother will obtain a referral to a qualified sexual assault counsellor through NSW Health Community Centres.

16.

The appointment of the Independent Children’s Lawyer be discharged.

17.

All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

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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