Sharp and Underwood - [2014] FamCA 301

FAMILY COURT OF AUSTRALIA

SHARP & UNDERWOOD

[2014] FamCA 301

FAMILY LAW – CHILDREN – Where the applicant is not the biological parent of one of the children – Parental responsibility – Where the applicant is granted sole parental responsibility for both children – With whom the children live – Where it is in the best interests of the children that they remain living with the applicant – With whom the children spend time – Where the children will spend time and communicate with the mother – Where during this time the children will have an opportunity to spend time with their half-brother who lives with the mother.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 64B, 64C, 65AA, 65DAB, 117(1), 117(2A).

Donnell & Dovey (2010) 42 Fam LR 559.

APPLICANT:

Mr Sharp

RESPONDENT:

Ms Underwood

INDEPENDENT CHILDREN’S LAWYER:

Sarah Cleeland Lawyers

FILE NUMBER:

BRC

222

2012

DATE DELIVERED:

9 May 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

20 & 21 February 2014; 22 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pendergast

SOLICITOR FOR THE APPLICANT:

Melvin & Co

FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Cleeland Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER

The children J born … 2005 and K born … 2006 (“the children”) live with the Applicant.
The Applicant have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, save that the Applicant shall, prior to making a decision about any such issue:
(a)inform the Mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the Mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the Mother’s response, if any, when coming to his decision about any such issue; and
(d)inform the Mother of the final decision he has made with respect to that issue as soon as practicable thereafter.
The Applicant shall have sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in his care.
Save as is prescribed by Clauses (15) and (16) of this Order, the Mother shall have the sole responsibility for making decisions about the children’s day to day care welfare and development whilst they are in her care.
The children spend time with the Mother at all reasonable times as may be agreed between the parties in writing and, failing agreement, not less than:
(a) each alternate weekend from 6.30 pm Friday to 5.30 pm Sunday;
(b) for one half of the gazetted Queensland school holiday periods.
The Mother shall ensure that…

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 Sharp and Underwood

Details

AGLC: Sharp and Underwood [2014] FamCA 301
Case: [2014] FamCA 301
Decision Date: 9 May 2014

CaseChat Overview and Summary

This matter concerned the children J and K, born in 2005 and 2006 respectively. The dispute involved the Applicant and the Mother regarding the living arrangements and parental responsibility for the children. The decision was made by Hogan J.

The court was required to determine the primary residence of the children, the allocation of parental responsibility for long-term and day-to-day issues, and the specific arrangements for the children spending time with each parent. Further issues included communication protocols between the parents, arrangements for school holidays, and restrictions on the Mother's access to certain health practitioners and an individual named Mr A.

Hogan J ordered that the children live with the Applicant and that the Applicant have sole parental responsibility for all major long-term issues, subject to a requirement to inform the Mother in writing of proposed decisions and consider her response. The Applicant was also granted sole responsibility for day-to-day decisions when the children are in his care. The Mother was granted sole responsibility for day-to-day decisions when the children are in her care, with specific provisions for the children spending time with her, including alternate weekends and half of school holidays. The order also detailed communication arrangements, holiday schedules, and imposed injunctions restraining the Mother from taking the children to certain health practitioners and to Mr A without the Applicant's written consent. The court also ordered the Mother to pay the Applicant's costs thrown away due to her non-appearance on a previous date.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER

The children J born … 2005 and K born … 2006 (“the children”) live with the Applicant.

The Applicant have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, save that the Applicant shall, prior to making a decision about any such issue:

(a) inform the Mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and

(b) allow the Mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and

(d) inform the Mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

The Applicant shall have sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in his care.

Save as is prescribed by Clauses (15) and (16) of this Order, the Mother shall have the sole responsibility for making decisions about the children’s day to day care welfare and development whilst they are in her care.

The children spend time with the Mother at all reasonable times as may be agreed between the parties in writing and, failing agreement, not less than:

(a) each alternate weekend from 6.30 pm Friday to 5.30 pm Sunday;

(b) for one half of the gazetted Queensland school holiday periods.

The Mother shall ensure that the children attend any sporting fixture which occurs during any period of time they spend with her and, for the purpose of facilitating this, the Applicant shall provide to the Mother a copy of the relevant fixture list for such sport forthwith upon it becoming available.

The Applicant shall not enrol the children in more than one sporting or other activity which requires their attendance on a weekend at any given time without the prior written consent of the Mother.

The Mother shall collect the children from the Applicant’s residence at the commencement of the time the children spend with her and the Applicant shall collect the children from the Mother’s residence at the conclusion of the time the children spend with her.

The children shall communicate with the Mother by telephone in the period from 6.00 pm until 6.30 pm on each Tuesday and each alternate Friday and to facilitate this communication:

(a) the Mother shall initiate the telephone call to the children; and

(b) the Applicant shall ensure the children are available to receive the telephone call.

10.

During any period when the children are spending time with the Mother, the children shall communicate with the Applicant by telephone in the period from 6.00 pm to 6.30 pm on each Tuesday and each alternate Friday and to facilitate this communication:

(a) the Applicant shall initiate the telephone call to the children; and

(b) the Mother shall ensure the children are available to receive the telephone call.

11.

For the purpose of the December/January school holidays in each year:

(a) the Mother shall collect the children at the commencement of the Christmas school holidays; and

(b) the Applicant shall collect the children at 2:30 pm on Christmas Day and retain the children until his allocated leave has expired; and

12.

In the event the children would not otherwise be spending time with the Mother on the weekend on which Mother’s Day falls, the children shall spend additional time with her from 6.30 pm Friday to 5.30 pm Sunday on that weekend.

13.

In the event the implementation of Clause 5(a) of this Order would see the children spending time with the Mother on the weekend during which Father’s Day occurs, the operation of this Clause is suspended for that weekend, so the children remain in the Applicant’s care on that weekend.

14.

During the times the children are in their care, the parties shall not:

(a) engage in any acts of verbal or physical violence or perpetuate any violence on the other party in the presence of the children;

(b) denigrate the other party in the presence of the children;

(d) consumes excess alcohol or illegal drugs.

15.

Save for obtaining treatment for medical emergencies, the children shall attend one General Practitioner as selected by the Applicant and, save in the case of emergency or as agreed with the Applicant in writing, the Mother is restrained and an injunction is hereby issued restraining her from taking the children to any other health practitioner.

16.

Unless agreed between the parties in writing, the mother is restrained and an injunction is hereby issued restraining her from taking the children to any counsellor.

17.

Each party shall immediately notify the other of any medical emergency relating to the children or either of them and shall provide all details and information necessary to enable the other party to attend upon the children forthwith.

18.

Unless agreed in writing with the Applicant, or pursuant to further Order of the Court, the Mother is restrained and an injunction hereby issues restraining her from bringing either of the children into contact or communicating – whether by telephone, email, Skype or by way of physical interaction – with Mr A.

19.

The parties shall:

(a) keep each other informed at all times as to the suburb which they reside;

(b) keep each other informed at all times of a mobile telephone number on which they can be contacted;

(c) keep each other informed at all times of the names and addresses of any treating medical practitioners or other health care practitioners upon whom the children attend;

(d) inform each other as soon as reasonably practicable about any significant injury suffered by the children or significant illness which necessitates them receiving medical or hospital attention;

(e) keep each other informed at all times of the names and addresses of any educational or child care institution or facility at which the children attend.

20.

By this Order, any medical practitioner, health care practitioner or hospital upon whom the children attend is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the children.

21.

By this Order, any educational or childcare institution or facility at which the children attend is hereby authorised to provide to each party, at that party’s request and cost, all information about the children’s education, progress and participation in school or childcare related activities.

22.

Both parties are at liberty to attend at the children’s sporting and extracurricular activities.

23.

The parties shall communicate about significant issues relating to the children via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.

24.

The Independent Children’s Lawyer is discharged.

25.

The Mother pay the Applicant’s costs thrown away as a result of her non-appearance on 20 February 2014 in an amount fixed at $1,000.00 with payment to be made by 4.00 pm on 9 July 2014.

26.

Save as is ordered above, there is no Order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.