SEBOURNE & SEBOURNE - [2020] FCCA 3172

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEBOURNE & SEBOURNE

[2020] FCCA 3172

Catchwords:
FAMILY LAW– Parenting – final hearing – three children aged 12, 10 and 6 – mother seeks sole parental responsibility – father seeks equal shared parental responsibility – father seeks an equal time arrangement – best interest of the children – order for children to live primarily with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC,

Pt VII.

Cases cited:

Goode & Goode (2006) FLC 93-286

Oscar & Traynor [2008] FamCA 95

Applicant:

MR SEBOURNE

Respondent:

MS SEBOURNE

File Number:

NCC 898 of 2019

Judgment of:

Judge Costigan

Hearing dates:

10 & 12 August 2020

Date of Last Submission:

27 August 2020

Delivered at:

Newcastle

Delivered on:

20 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Murray

Solicitors for the Applicant:

Winder Lawyers

Counsel for the Respondent:

Ms Ticehurst

Solicitors for the Respondent:

Harpers Legal

ORDERS

The parents have equal shared parental responsibility for the children, X born in 2008, Y born in 2010 and Z born in 2014 (‘the children’).
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)Each alternate week, from the conclusion of school Monday (or 3.00pm) until the commencement of school Tuesday (or 9.00am), to commence the first Monday after the date of these Orders;
(b)In that same week from 9am Saturday (or 3.00pm) until the commencement of school (or 9.00am) Wednesday in the second week, to commence the first Saturday falling after the time referred to in 3(a).
(c)During school holiday periods in Terms 1, 2 and 3, as agreed and failing agreement as follows:
(i)In even numbered years, for the first half of the school holiday period commencing at 9.00am on the first Saturday of the school holiday period and concluding at 5.00pm on the second Saturday of that period; and
(ii)In odd numbered years, for the second half of the school holiday period commencing at 9.00am on the second Saturday of the school holiday period and concluding at 5.00pm on the second Saturday immediately prior to the commencement of the school term.
(d)During the Term 4 School Holiday period, as agreed and failing agreement as follows:
(i)During the Christmas New South Wales gazetted school holidays as agreed but failing agreement for the first half of the Christmas school holidays in odd numbered years to commence at 10.00 am on the first Saturday following the cessation of the school term and concluding at 6.00 pm on the day that marks the midpoint of the school holiday period and in even numbered years the second half of the school holiday period commencing at 10.00 am on the day that marks the mid-point of the school holidays and concludes at 6.00 pm on the Sunday prior to the commencement of the new school term.
(ii)The time in Order 3(a) and 3(b) shall be suspended during school holiday periods and will resume at the commencement of school term as…

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: SEBOURNE & SEBOURNE [2020] FCCA 3172
Case: [2020] FCCA 3172
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the matter of *Sebourne & Seboune*, heard by Judge Costigan, the dispute concerned parenting arrangements for three children aged 12, 10, and 6. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility and an equal time arrangement.

The court was required to determine the best interests of the children in relation to parental responsibility and the specific time each parent would spend with them. This involved considering the various proposals put forward by each parent and assessing which arrangement would best serve the children's welfare.

The court ultimately ordered that the parents have equal shared parental responsibility for the children. However, it was determined that the children would live primarily with the mother. The father was granted specific periods of time with the children, including alternate weekday overnights, significant weekend time, and detailed arrangements for school holidays and public holidays, with certain provisions for communication and parental conduct.

Orders

Orders of the court

The parents have equal shared parental responsibility for the children, X born in 2008, Y born in 2010 and Z born in 2014 (‘the children’).

The children shall live with the mother.

The children shall spend time with the father as follows:

(a) Each alternate week, from the conclusion of school Monday (or 3.00pm) until the commencement of school Tuesday (or 9.00am), to commence the first Monday after the date of these Orders;

(b) In that same week from 9am Saturday (or 3.00pm) until the commencement of school (or 9.00am) Wednesday in the second week, to commence the first Saturday falling after the time referred to in 3(a).

(i) In even numbered years, for the first half of the school holiday period commencing at 9.00am on the first Saturday of the school holiday period and concluding at 5.00pm on the second Saturday of that period; and

(ii) In odd numbered years, for the second half of the school holiday period commencing at 9.00am on the second Saturday of the school holiday period and concluding at 5.00pm on the second Saturday immediately prior to the commencement of the school term.

(d) During the Term 4 School Holiday period, as agreed and failing agreement as follows:

(i) During the Christmas New South Wales gazetted school holidays as agreed but failing agreement for the first half of the Christmas school holidays in odd numbered years to commence at 10.00 am on the first Saturday following the cessation of the school term and concluding at 6.00 pm on the day that marks the midpoint of the school holiday period and in even numbered years the second half of the school holiday period commencing at 10.00 am on the day that marks the mid-point of the school holidays and concludes at 6.00 pm on the Sunday prior to the commencement of the new school term.

(ii) The time in Order 3(a) and 3(b) shall be suspended during school holiday periods and will resume at the commencement of school term as if it had not been interrupted by Orders 3(c) and 3(d).

Notwithstanding any other Order, the children shall spend time with the father:

(a) At Easter, in odd numbered years, from 3.00pm Easter Saturday until 3.00pm Easter Sunday and in even numbered years, from 3.00pm Easter Sunday until 3.00pm Easter Monday.

(b) On Father’s Day, from 9.00am until 5.00pm.

(c) At Christmas, in odd numbered years, from 3.00pm Christmas Day until 3.00pm Boxing Day and in even numbered years from 3.00pm Christmas Eve until 3.00pm Christmas Day.

The father’s time with the children shall be suspended:

(a) On Mother’s Day, from 9.00am until 5.00pm.

(b) At Easter, in even numbered years from 3.00pm Easter Saturday until 3.00pm Easter Sunday, and in odd numbered years from 3.00pm Easter Sunday until 3.00 pm Easter Monday.

(c) At Christmas, in odd numbered years from 3.00pm Christmas Day and in even numbered years from 3.00pm Christmas Day until 3.00pm Boxing Day.

For the purposes of changeover, where this does not otherwise occur at school, it will take place by the mother delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.

The children shall have liberal telephone or Facetime communication with the parent they are not spending time with, at all reasonable times and intervals.

Each parent shall immediately contact the other parent upon any of the following occurring whilst the children are in their care;

(a) The children falling seriously ill;

(b) The children being hospitalised; or

Both parents are authorised (and a copy of these Orders shall be sufficient authority):

(a) To receive (at their own expense) such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;

(b) To attend (at their own expense) all functions to which parents are normally invited by any school which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent-teacher interviews.

(c) To receive (at their own expense) such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.

10.

The parents are restrained from denigrating the other in the presence or hearing of the children and will remove the children from any situation where such denigration is occurring.

11.

The Father is restrained from consuming illicit substances or drinking alcohol 12 hours prior to or during any time the children are in his care.

12.

The Father is restrained from exposing the children to family violence during any period the children are in his care.

13.

The parents shall only communicate via email in respect of the children, except for urgent matters where that communication can be either by text message or telephone call.

14.

The parents shall inform the other of any change to their residential address, email address or telephone number within 48 hours of such change occurring.

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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