SCOTT & SCOTT - [2019] FamCA 306

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT

[2019] FamCA 306

FAMILY LAW – CHILDREN – Final orders – Best interests of the child – With whom the child shall live and spend time – Where current interim orders provide for the child to live with the mother and to spend time with the father for five nights each fortnight and portions of the school holidays – Where the mother proposed a reduction in the time from five nights to only three nights per fortnight – Where the father sought orders for the child to live with the parties for equal time on a weekly rotation – Where the Independent Children’s Lawyer supported the father’s proposal – Where the child has meaningful relationships with both parents from which he derives benefit – Where the mother made allegations of historical acts of family violence perpetrated by the father against her – Where the father denied any and all allegations of physical violence – Where no findings are made about family violence – Where the evidence did not demonstrate there was a need to protect the child from physical or psychological harm from being subjected or exposed to family violence or abuse – Where no risk of harm posed to the child in the care of either parent – Where relevant additional considerations prescribed by s 60CC(3) of the Family Law Act 1975 (Cth) are taken into account – Where the child’s views are considered – Where equal time is reasonably practicable and in the child’s best interests – Where the Family Consultant recommended an equal time arrangement – Ordered the child live with the parties for equal time on weekly rotations – Ordered the suspension of equal time on a few special occasions – Ordered the Independent Children’s Lawyer to explain the outcome of the parenting dispute to the child.

FAMILY LAW – CHILDREN – Parenting – Where the parties agree they should have equal shared parental responsibility for the child – Where the Independent Children’s Lawyer and the Family Consultant supported an order for equal shared parental responsibility – Where the mother’s allegations of family violence were not used to render the presumption of equal shared parental responsibility inapplicable – Where equal shared parental responsibility would be in the child’s best interests – Allocation of equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
M & M (1988) 166 CLR 69; [1988] HCA 68

APPLICANT:

Ms Scott

RESPONDENT:

Mr Scott

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

CRC

105

2016

DATE DELIVERED:

17 May 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

6 & 7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Carolan

SOLICITOR FOR THE RESPONDENT:

Green & McKay

COUNSEL FOR THE INDEPENDENT CHILDREN’S…

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.

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Details

AGLC: SCOTT & SCOTT [2019] FamCA 306
Case: [2019] FamCA 306
Decision Date: 17 May 2019

CaseChat Overview and Summary

In the matter of *Scott & Scott*, Austin J of the Family Court of Australia considered a dispute between the parents regarding parenting orders for their child. The existing interim orders provided for the child to live with the mother and spend time with the father for five nights each fortnight. The mother sought to reduce the father's time to three nights per fortnight, while the father sought orders for equal time on a weekly rotation. The Independent Children’s Lawyer supported the father’s proposal.

The court was required to determine the best interests of the child, considering the relevant provisions of section 60CC of the *Family Law Act 1975* (Cth). This included assessing the child's relationships with both parents, the child's views, and the additional considerations prescribed by the Act. Crucially, the court had to consider allegations of historical family violence made by the mother against the father, and whether these allegations impacted the presumption of equal shared parental responsibility or the child's safety.

Austin J found that the child had meaningful relationships with both parents from which he derived benefit. The court made no findings of family violence and concluded that the evidence did not demonstrate a need to protect the child from harm in the care of either parent. The court considered the child's views and the recommendation of the Family Consultant, who supported an equal time arrangement. Applying the principles of the *Family Law Act*, the court determined that equal time was reasonably practicable and in the child's best interests. The parties also agreed to have equal shared parental responsibility, which the court found to be in the child's best interests.

Consequently, the court ordered that the child live with the parties for equal time on weekly rotations, discharging all former parenting orders. The equal time arrangement was suspended on specific occasions, including Christmas Eve and Boxing Day, and for Mother's Day and Father's Day, with detailed provisions for the child's time with each parent on these days. The court also ordered the parties to have equal shared parental responsibility and directed the Independent Children’s Lawyer to explain the outcome of the parenting dispute to the child.

Orders

Orders of the court

All former parenting orders concerning the child O, born in 2007, are discharged as from 9.00 am on Wednesday 22 May 2019.

The parties shall have equal shared parental responsibility for the child.

The child shall live with the parties for equal time in the following sequence:

(a) With the father from the commencement of school (or 9.00 am if not a school day) on Wednesday 22 May 2019 until the commencement of school (or 9.00 am if not a school day) on Wednesday 29 May 2019, and every alternate week thereafter; and

(b) With the mother from the commencement of school (or 9.00 am if not a school day) on Wednesday 29 May 2019 until the commencement of school (or 9.00 am if not a school day) on Wednesday 5 June 2019, and every alternate week thereafter.

Order 3 is suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

(b) Between 9.00 am and 7.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

For the purposes of implementing Orders 3 and 4 hereof, the parties shall respectively ensure the child’s:

(a) Collection from school, whenever the child’s residence with a party is to commence at or about the conclusion of school during school term;

(b) Return to school, whenever the child’s residence with a party is to conclude at or about the commencement of school during school term; and otherwise

Within seven days hereof the parties shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

10.

Any and all outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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