Seaford and Seaford - [2007] FamCA 1460

FAMILY COURT OF AUSTRALIA

SEAFORD & SEAFORD

[2007] FamCA 1460

FAMILY LAW - CHILDREN - parenting - presumption of equal shared parental responsibility applying, should there be order for child to spend equal time with both parents - lack of communication and co-operation - relevant research - (Jennifer McIntosh & Caroline Long, The Child Responsive Program: Operating within the Less Adversarial Trial, July 2007) - child's wishes - expert evidence.

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 61DA, 65DAA(1) and (2)

HUSBAND:

Mr Seaford

WIFE:

Mrs Seaford

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGF

2640

1999

DATE DELIVERED:

17 December, 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

20, 21, 22, 23 August, 3 September, 5 November, 2007

REPRESENTATION

THE HUSBAND:

In person

THE WIFE:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms. Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McCarthy Hoey

Orders

That all existing parenting orders and injunctions relating to the child of the marriage, a son, (“the child”) born … September, 1996 be discharged as and from 20 December, 2007 or the last day of the current school term, whichever occurs earlier.

That subject to paragraph (9) hereof, the husband and wife have equal shared parental responsibility for the child.

That as from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the wife as follows :
(a)Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :
(i)on the first Friday of the first school term in 2008 and each alternate year thereafter; and
(ii)on the second Friday of the first school term in 2009 and each alternate year thereafter.

(b)Subject to paragraph (4)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :
(i)the first half in 2007/2008 and each alternate year thereafter; and
(ii)the second half in 2008/2009 and each alternate year thereafter.

(c)From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day 2008 and each alternate year thereafter.

(d)As otherwise agreed between the parties.

That as and from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the husband as follows :
(a)Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :
(i)on the second Friday of the first school term in 2008 and each alternate year thereafter; and
(ii)on the first Friday of the first school term in 2009 and each alternate year thereafter.

(b)Subject to paragraph (3)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :
(i)the second half in 2007/2008 and each alternate year thereafter; and
(ii)the first half in 2008/2009 and each alternate year thereafter.

(c)From 12:00 noon…

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 Seaford and Seaford

Details

AGLC: Seaford and Seaford [2007] FamCA 1460
Case: [2007] FamCA 1460
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the matter of *Seaford and Seaford*, Brown J considered parenting orders concerning a son born in September 1996. The dispute involved the arrangements for the child's living arrangements, parental responsibility, and related matters following the breakdown of the parents' marriage.

The court was required to determine the specific terms of parenting orders, including the discharge of existing orders and injunctions, the allocation of equal shared parental responsibility, and the detailed schedule for the child to live with each parent. Further issues included provisions for holidays, special days such as birthdays, Fathers' Day and Mothers' Day, communication between the child and parents, attendance at school events, and the financial responsibilities for school fees and extracurricular activities. The court also had to address arrangements for counselling, medical information sharing, dispute resolution for major long-term decisions, and prohibitions against denigration and discussing proceedings with the child.

Brown J discharged all existing parenting orders and injunctions relating to the child. The court ordered that the husband and wife have equal shared parental responsibility. Detailed provisions were made for the child to live with each parent on an alternate weekly basis during school terms, with specific arrangements for long summer holidays and Christmas. The orders also stipulated that both parents ensure the child spends time with each parent on their respective birthdays, Fathers' Day, and Mothers' Day, with specific times outlined in the absence of agreement. Further orders addressed changeover procedures, the husband's responsibility for school fees and enrolment at P School, communication methods, attendance at school and sporting events, counselling arrangements, and the exchange of medical information. The court also mandated a process for consultation on major long-term decisions, including dispute resolution, and imposed restraints on denigration and discussing proceedings with the child.

Orders

Orders of the court

That all existing parenting orders and injunctions relating to the child of the marriage, a son, (“the child”) born … September, 1996 be discharged as and from 20 December, 2007 or the last day of the current school term, whichever occurs earlier.

That subject to paragraph (9) hereof, the husband and wife have equal shared parental responsibility for the child.

That as from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the wife as follows :

(a) Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :

(i) on the first Friday of the first school term in 2008 and each alternate year thereafter; and

(ii) on the second Friday of the first school term in 2009 and each alternate year thereafter.

(b) Subject to paragraph (4)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :

(i) the first half in 2007/2008 and each alternate year thereafter; and

(ii) the second half in 2008/2009 and each alternate year thereafter.

(d) As otherwise agreed between the parties.

That as and from the earlier of 20 December, 2007 or the last day of the current school term, the child live with the husband as follows :

(a) Save during the long summer school holiday period and as provided in paragraph (7) hereof, during each alternate week, commencing at the conclusion of school :

(i) on the second Friday of the first school term in 2008 and each alternate year thereafter; and

(ii) on the first Friday of the first school term in 2009 and each alternate year thereafter.

(b) Subject to paragraph (3)(c) hereof, for one half of the long summer school holiday period, at times to be agreed and failing agreement :

(i) the second half in 2007/2008 and each alternate year thereafter; and

(ii) the first half in 2008/2009 and each alternate year thereafter.

(d) As otherwise agreed between the parties.

That notwithstanding the provisions of paragraphs (3) and (4) hereof, the parties do all things reasonably necessary to ensure that the child spends time :

(a) with each of his parents on the child’s birthday;

(b) with the husband on Fathers’ Day; and

and in the absence of agreement, the following provisions shall apply :

(i) the parent with whom the child is not living on his birthday shall spend time with him :

A. if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and

B. if the birthday falls on a non-school day, for four hours at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm. on the birthday;

(ii) if the child would not otherwise live with the husband on Fathers’ Day, he shall spend time with the husband from 10:00 am. until 6:00 pm. on Fathers’ Day; and

(iii) if the child would not otherwise live with the wife on Mothers’ Day, he shall spend time with the wife from 10:00 am. until 6:00 pm. on Mothers’ Day.

That to give force and effect to paragraphs (3) and (4) hereof, the following provisions apply :

(a) the first half of the long summer school holiday period is deemed to commence at the conclusion of school on the last day of the school year and conclude :

(i) if there are an even number of days in the period, at 5:00 pm. on the last day of the first half of the period; or

(ii) if there are an odd number of days in the period, at 12:00 noon on the middle day of the period;

(b) the second half of the long summer school holiday period is deemed to conclude at the commencement of school on the first day of the first term of the new school year and commence :

(i) if there are an even number of days in the period, at 5:00 pm. on the last day of the first half of the period; or

(ii) if there are an odd number of days in the period, at 12:00 noon on the middle day of the period.

That during the first week of the first school term in each year the child shall live with the parent with whom he spent the second half of the immediately preceding long summer school holiday period and to illustrate the operation of this order :

(a) The child shall live with the husband for the second half of the long summer school holiday period in 2007/2008 and remain living with him until the conclusion of school on the first Friday of the first school term in 2008; and

(b) The child shall live with the wife for the second half of the long summer school holiday period in 2008/2009 and remain living with her until the conclusion of school on the first Friday of the first school term in 2009.

That for the purpose of changeovers the following provisions apply :

(a) During school terms, changeovers shall occur at the child’s school.

(b) The parent with whom the child is to live for the following week, or his or her nominee, shall collect the child.

(c) The parent with whom the child has lived in the preceding week be and is restrained from attending at the child’s school at a changeover time unless an event, activity or function referred to in paragraph (12) hereof takes place at that time.

(d) Notwithstanding the provisions of sub-paragraphs (8)(a) and (b) hereof, and in the discretion of the parent with whom the child is to live the following week, the child may travel to that parent’s home by school bus or public transport, in lieu of a changeover at the school.

(e) Changeovers which do not occur on a school day shall occur at the McDonald’s restaurant at N on the … Road, or such other place as the parties agree.

PROVIDED THAT the husband be responsible for the payment of all school fees and other costs (including school uniforms, books and excursions) the child may attend P School, commencing in term 1 in 2008, and the husband be at liberty to do all things reasonably necessary to enrol him in P School.

10.

That if the husband does not intend to enrol the child at P School to commence in term one in 2008, he advise the wife of that no later than 11 January, 2008 and in those circumstances :

(a) The child continue to attend N Primary School in 2008; and

(b) the parties consult with each other about the school he is to be enrolled in from 2009, as provided in paragraph (21) hereof.

11.

That the child may communicate by telephone and email with the parent with whom he is not then living and each parent do all things reasonably necessary to facilitate such communication.

12.

That each of the parties be at liberty to attend the child’s school for events, activities and functions routinely attended by parents, including (but not limited to) parent/teacher interviews, school functions, concerts and sporting events.

13.

That each of the parties be permitted to obtain from the child’s school, newsletters, school reports, school photograph order forms and like documents routinely provided to parents, and each be responsible for the costs (if any) of such provision to him or her.

14.

That a sealed copy of this order be served by the husband as soon as practicable on the principal of N Primary School and, on the child’s enrolment at P School or other school, the principal of P School or such other school.

15.

That each of the parties be at liberty to attend any sporting or martial arts competition or event in which the child is competing or otherwise involved.

16.

That notwithstanding any other order made this day, if the child is to compete in any of the following sporting events and the event does not fall within a period in which the child lives with the husband, the husband shall have such additional time with the child as is necessary for the child to attend and participate in such event PROVIDED THAT the husband provides to the wife no less than 28 days written notice of :

(a) the date or dates of the event;

(b) a copy of the official entry form; and

Events

A. Victoria State Championships

B. A.C.T. Championships

C. National Championships

D. Metro Final

E. Northern Final

F. Victorian Challenge.

17.

That the husband shall be responsible for the costs of the child’s participation in an event referred to in paragraph (16) hereof.

18.

That the wife be at liberty to attend any event attended by the child pursuant to paragraph (16) hereof.

19.

That each of the parties do all things reasonably necessary to ensure the child’s continued attendance upon Ms. M of Lifeworks, or other counsellor recommended by her, for so long as she (or such other counsellor) considers necessary and :

(a) the husband be responsible for the costs of such counselling (if any); and

(b) each of the parties be at liberty to discuss the child’s progress with Ms. M and, if requested by her, to attend any counselling session.

20.

That each of the parties advise the other as soon as practicable of any serious illness or injury experienced by the child when in his or her care and authorise each treating medical practitioner or like professional to discuss the child’s condition, treatment and prognosis with the other.

21.

That in the absence of agreement to the contrary, when it is necessary for the parties to consult about a major long term decision, the consultation shall be initially in writing (and be child focused and non-derogatory) and if no agreement can be reached, the parties shall attend Primary Dispute Resolution.

22.

That for the purposes of the preceding paragraph, major long term decisions include decisions about the child’s education, health, religion and place of residence if a proposed change of residence of either party would interfere with the residence arrangement contained in these orders.

23.

That each of the parties be and are hereby restrained from :

(a) denigrating the other or members of the other’s family to the child or in his presence or hearing;

(b) physically disciplining the child; and

(c) discussing these proceedings and any evidence adduced in the proceedings with the child or in his presence or hearing.

24.

That a copy of the reasons for judgment herein may be provided to :

(a) Mr. S;

(b) Ms. M;

(c) the principal of any school attended by the child and, in his or her absolute discretion, any teacher, counsellor or other professional working with the child through the school;

(d) the Department of Human Services and Victoria Police investigating any notification or allegation relating to the child.

25.

That each of the parties keep the other advised of any change in his or her residence and provide the other with a current telephone number on which the child can be contacted during times he lives with that party.

26.

That the independent children’s lawyer be discharged at the expiration of one month or, in the event a Notice of Appeal is filed, determination of such appeal.

27.

That all extant applications be otherwise dismissed.

28.

That these proceedings be removed from the List of matters awaiting finalisation.

29.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

30.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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