Self & Bachman (No 2) - [2021] FedCFamC1F 335

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Self & Bachman (No 2) [2021] FedCFamC1F 335

File number(s): SYC 2566 of 2016

Judgment of: SCHONELL J

Date of judgment: 21 December 2021

Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where judgment is currently reserved after defended hearing in February 2021 – Where the father has not spent time with the child since August 2021 – Where the father seeks an enforcement order and compensatory time – Where the mother seeks interim sole parental responsibility for the child and gradual reintroduction of time for the father – Where the child is suffering anxiety due to the parties’ conflict – Where the child should resume a gradual reintroduction of time with the father – Where the court needs to adopt a cautious approach with respect to interim parenting considerations - Best interests of the child – Orders.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZL

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01, 11.69

Cases cited:
Adamson & Adamson [2018] FamCA 523

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348

Mazorski & Albright [2007] FamCA 520

Sigley & Evor (2011) Fam LR 439

Division: Division 1 First Instance

Number of paragraphs: 73

Date of hearing: 16 December 2021

Place: Sydney

Applicant: Litigant in Person

Solicitor for the Respondent: Adam Jones Solicitor

Solicitor for the Independent Children's Lawyer: Tiyce & Lawyers
ORDERS

SYC 2566 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BACHMAN

Applicant

AND:
MS SELF

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

21 DECEMBER 2021

THE COURT ORDERS THAT:
1.Each parent is permitted to do all acts and things and sign all documents necessary to secure the enrolment of the child at a secondary school(s) of that parents choosing on the implicit assumption that it does not represent an agreement of the other parent to the child attending that school or an acceptance by the other parent to contribute to the school fees.
2.Order 4.1 and 4.2 made 26 July 2016 and Order 10 made 28 November 2016 be suspended until the first day of Term 1 2022.
3.The father shall spend time with X, born 2011 over the 2021/2022 Christmas School Holidays as follows:
(a)2 hours on 23 December 2021 between 2pm and 4 pm
(b)3 hours on 25 December 2021 between 2pm and 5 pm
(c)4 hours on 27 December 2021 between 2pm and 6 pm
(d)5 hours on 29 December 2021 between 2pm and 7 pm
(e)5 hours on 31 December 2021 between 2 pm and 7 pm
(f)6 hours on 3 January 2022 between 1 pm and 7 pm
(g)6 hours on 6 January 2022 between 1 pm and 7 pm
(h)7 hours on 9 January 2022 between 12 and 7 pm

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 Self & Bachman (No 2)

Details

AGLC: Self & Bachman (No 2) [2021] FedCFamC1F 335
Case: [2021] FedCFamC1F 335
Decision Date

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia (Division 1) presided over by Justice Schonell considered an interim application concerning the child X, born in 2011, and the parties’ dispute over the arrangements for the father to spend time with the child. The proceedings had been ongoing for a significant period, with the final hearing concluded in February 2021 but reserved by Justice Harper. The child had not spent time with the father since August 2021, leading the father to seek enforcement of existing orders and compensatory time. The mother, on the other hand, sought interim sole parental responsibility, gradual reintroduction of time for the father, and suspension of the existing time arrangements. The Independent Children's Lawyer supported the mother's position.

The central legal issue was determining how to restore the child's relationship with his father, considering the child's anxiety due to the parties' conflict. The court considered the competing proposals of the parties, the risks identified in the reports of the child's General Practitioner and psychologist, and the mother's perspective on what she believed was in the child's best interests.

Justice Schonell concluded that the existing orders for time between the father and the child should be suspended during the currency of the Christmas school holidays. The court decided that a more graduated reintroduction to the existing orders was necessary over the forthcoming school holidays, to avoid increasing the child's anxiety and jeopardising the father's long-term relationship with the child. The court placed considerable weight on the mother's perspective, as she knew best what her child could tolerate. The orders made were deemed to be in the best interests of the child.

The court declined to make the balance of the father's orders for spending time with the child and the mother's orders for spending time. The court also declined to make the mother's orders for sole parental responsibility, stating that there was insufficient evidence to be comfortably satisfied that it was in the child's best interests. The matter will stand over before Justice Harper on 21 March 2022 for final determination.

Orders