Shand and Connor - [2010] FamCA 59

FAMILY COURT OF AUSTRALIA

SHAND & CONNOR

[2010] FamCA 59

FAMILY LAW - CHILDREN

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(4), 60CC(4A)
Federal Proceedings (Costs) Act 1981 (Cth) s 10(3)

Goode and Goode (2006) FLC 93-286

APPLICANT:

Ms Shand

RESPONDENT:

Mr Connor

FILE NUMBER:

PAF

1390

2006

DATE ORDERS MADE:

19 January 2010

DATE REASONS FOR JUDGMENT

DELIVERED:

29 January 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 - 22 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hazelwood

SOLICITOR FOR THE APPLICANT:

Branston Neville

SOLICITOR FOR THE RESPONDENT:

Brischetto & Ford

Orders

The child A born … March 2005 live with the mother apart from the time the child spends with her father pursuant to these Orders.
The mother and father have equal shared parental responsibility for the child.
The child attend L Catholic School upon her commencement of school in 2010 and unless the parties otherwise agree, complete her primary education at that school.
From the commencement of Term 1 in 2010, the child spend time with the father:
4.1.During school term, from after school on Friday afternoon to the commencement of school on Tuesday morning each alternate week.
4.2.Half of each school holidays as agreed by the parties and failing agreement (except as provided in Order 4.3), in the first half thereof in even numbered years and the second half thereof in odd numbered years.
4.3.Notwithstanding Order 4.2, in each Christmas period:
4.3.1.The child shall live with the father from 12 noon Christmas Day until 12 noon Boxing Day in even numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in odd numbered years.
4.3.2.The child shall live with the mother from 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in even numbered years.
4.4.If the father’s birthday and/or Father’s Day does not fall on any of the days referred to in Orders 4.1 or 4.2 above, then:
4.4.1.In respect of the father’s birthday, unless the parties otherwise agree, the child shall spend time with him from after school or 4.30pm (as the case may be) until 6.00pm; and
4.4.2.In respect of Father’s Day, then the child shall live with the father on the Father’s Day weekend in substitution for the weekend she would otherwise have spent with the father pursuant to 4.1 and 4.2 above which immediately precedes the Father’s Day weekend.
4.5.If the mother’s birthday and/or Mother’s Day does not fall on a day upon which the child would be living with the mother pursuant to these orders, then:
4.5.1.In respect of the mother’s birthday, unless the parties otherwise agree, the child shall spend time with her from after school or 4.30pm (as the case may be) until 6.00pm; and
4.5.2.In respect of Mother’s Day, then the child shall live with the mother on the Mother’s Day weekend in substitution for the weekend that she would…

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] FamCA 59
Decision Date: 29 January 2010

CaseChat Overview and Summary

Watts J made orders concerning the living arrangements and parental responsibility for a child, A, born in March 2005. The dispute involved the parents' arrangements for their child, including where the child would live, the allocation of parental responsibility, and the specific times the child would spend with each parent. The court also made orders regarding the child's education and the process for handovers.

The court was required to determine the specific terms of the parenting orders, including the primary residence of the child, the nature of parental responsibility, the child's schooling, and a detailed schedule for the child's time with each parent. This schedule encompassed regular weekend and holiday arrangements, as well as specific provisions for birthdays and other significant dates. The court also addressed the practicalities of child handovers and the inclusion of a fact sheet detailing obligations and consequences of contravention.

The court ordered that the child A would live with the mother, with equal shared parental responsibility allocated to both parents. The child was to attend L Catholic School from 2010 and complete her primary education there unless otherwise agreed. A detailed schedule was established for the child's time with the father, including alternate weekends, half of school holidays, and specific arrangements for Christmas. Provisions were also made for the child to spend time with each parent on their respective birthdays and Mother's/Father's Day, and for the child's own birthday. Handovers were to occur at the mother's residence or the paternal grandparents' residence, with school day handovers at school. The court also noted that the time for any appeal would commence upon the publication of the reasons for these orders and that the orders were made in chambers pursuant to s 69ZO of the Family Law Act, with particulars of obligations and consequences set out in an attached fact sheet.

Orders

Orders of the court

The child A born … March 2005 live with the mother apart from the time the child spends with her father pursuant to these Orders.

The mother and father have equal shared parental responsibility for the child.

The child attend L Catholic School upon her commencement of school in 2010 and unless the parties otherwise agree, complete her primary education at that school.

From the commencement of Term 1 in 2010, the child spend time with the father:

4.1. During school term, from after school on Friday afternoon to the commencement of school on Tuesday morning each alternate week.

4.2. Half of each school holidays as agreed by the parties and failing agreement (except as provided in Order 4.3), in the first half thereof in even numbered years and the second half thereof in odd numbered years.

4.3. Notwithstanding Order 4.2, in each Christmas period:

4.3.1. The child shall live with the father from 12 noon Christmas Day until 12 noon Boxing Day in even numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in odd numbered years.

4.3.2. The child shall live with the mother from 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in even numbered years.

4.4. If the father’s birthday and/or Father’s Day does not fall on any of the days referred to in Orders 4.1 or 4.2 above, then:

4.4.1. In respect of the father’s birthday, unless the parties otherwise agree, the child shall spend time with him from after school or 4.30pm (as the case may be) until 6.00pm; and

4.4.2. In respect of Father’s Day, then the child shall live with the father on the Father’s Day weekend in substitution for the weekend she would otherwise have spent with the father pursuant to 4.1 and 4.2 above which immediately precedes the Father’s Day weekend.

4.5. If the mother’s birthday and/or Mother’s Day does not fall on a day upon which the child would be living with the mother pursuant to these orders, then:

4.5.1. In respect of the mother’s birthday, unless the parties otherwise agree, the child shall spend time with her from after school or 4.30pm (as the case may be) until 6.00pm; and

4.5.2. In respect of Mother’s Day, then the child shall live with the mother on the Mother’s Day weekend in substitution for the weekend that she would otherwise have spent with the mother pursuant to these orders which immediately precedes the Mother’s Day weekend.

4.6. If the child’s birthday falls on a day in respect of which she is not living with one of the parents for at least part of that day, then the child shall spend time with the other parent from after school or 4.30pm (as the case may be) until 6.30pm.

Handovers and/or collections which do not occur on a school day (and on those days the child shall be delivered to or collected from her school), the child shall be collected by the father from the mother’s residence at the commencement of the time she is to spend with the father and she shall be collected from the paternal grandparent’s residence at the conclusion of the time the child spends with the father.

The time for failing any appeal against these orders shall not commence until the Reasons for these orders are published.

Pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

These orders have been made in chambers pursuant to s 69ZO Family Law Act.

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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