Scranton and Scranton - [2010] FMCAfam 1160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCRANTON & SCRANTON

[2010] FMCAfam 1160

FAMILY LAW – Parenting – sole parental responsibility – impact of the father’s Obsessive Compulsive Personality Disorder (“OCPD”) – whether father’s time ought be supervised – impact upon the mother’s parenting capacity of an order for unsupervised time with the children and their father.

Family Law Act 1975 (Cth), ss.61DA, 60CC (2), (3) & (4)

Applicant:

MS SCRANTON

Respondent:

MR SCRANTON

File Number:

PAC 3475 of 2009

Judgment of:

Henderson FM

Hearing dates:

26, 27, 28 & 29 July 2010

Date of Last Submission:

29 July 2010

Delivered at:

Parramatta

Delivered on:

26 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

Shepherds The Family Law Specialists

Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Ms Druitt

Solicitors for the Independent Children’s Lawyer:

Matthews Folbigg Pty Ltd

ORDERS

The mother shall have sole parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2003.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)For twelve occasions following the making of these orders from 9am until 4pm on Sunday.
(b)In the event that the twelve occasions have not concluded by the holidays at the end of Term 4 2010 then from 8am until 5pm on Christmas Day.
(c)Upon the expiry of time set out in 3(a):
(i)During the school term each alternate weekend from 9am on Saturday until 5pm on Sunday commencing the first weekend after the expiry of Order 3(a).
(ii)For one half of the school holidays which fall at the end of Terms 1, 2 and 3 being the first half of those holidays in 2011 and each alternate year thereafter the and second half of the holiday in 2012 and each alternate year thereafter and the changeover shall take place at 3pm on the Saturday nearest to the middle of the holiday period.
(iii)From 4pm on 31 December 2011 until 4pm on 13 January 2012 and each year thereafter.
(iv)From 6pm on the day before each child’s birthday until 9am on the birthday in 2011 and each alternate year thereafter and from 6pm until 8pm on each child’s birthday in 2012 and each alternate year thereafter.
(v)From 6pm on the evening before Father’s Day until 5pm on Father’s Day.
(vi)From 9am on Orthodox Good Friday until 5pm on Orthodox Easter Sunday
(vii)On the father’s birthday from the conclusion of school until 7pm if the birthday falls on a school day and otherwise from 9am until 7pm.
(viii)From 3pm on Christmas Eve until 3pm on Christmas Day in odd numbered years and from 3pm on Christmas Day until 3pm on Boxing Day in even numbered years.
(ix)On Australia Day from 9am until 7pm in 2012 and each alternate year thereafter.
The father’s time shall be suspended as follows:
(a)From 6pm on the evening before Mother’s Day until 5pm on Mother’s Day.
(b)From 3pm on Christmas Eve until 3pm on Christmas Day in…

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

Case: [2010] FMCAfam 1160
Decision Date

CaseChat Overview and Summary

In Scranton & Scranton, the Federal Magistrates Court of Australia dealt with a parenting matter concerning the children [X] and [Y]. The mother, Ms Scranton, sought sole parental responsibility and the father, Mr Scranton, sought an order for equal shared parental responsibility. The court found that Mr Scranton's Obsessive Compulsive Personality Disorder (OCPD) and eccentric behaviour posed a risk to the children and concluded that sole parental responsibility should reside with the mother.

The court considered the impact of Mr Scranton's OCPD on his relationship and functioning with the children, and the dosage of time the children could cope with in their father's care. The court found that the children could benefit from spending time with their father, provided he behaved appropriately and predictably, and that the mother's concerns of the father's unpredictability and eccentricity were warranted. The court emphasised the importance of the children spending regular and quality time with their father, while also protecting them from harm due to their father's impaired functioning and negative impact on his parenting capacity.

The court ordered that the mother have sole parental responsibility, the children live with her, and spend time with their father as follows: twelve occasions following the making of these orders from 9am until 4pm on Sunday, and one weekend a fortnight from 9am Saturday until 5pm Sunday, each alternate weekend. The court also made orders in relation to school holidays, special occasions, and overseas travel.

The court found that making an order for equal shared parental responsibility was not in the children's best interests due to the father's impaired functioning, inability to take on board different points of view, desiccating of debate, lack of respect for the mother's point of view, and significant negative impact on the mother's parenting capacity. The court considered the factors in sections 60CC(2), (3), and (4) of the Family Law Act 1975 (Cth) and concluded that the proposed orders balanced the competing factors and were in the children's best interests.

Orders