Sharpe and Baxter - [2014] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE & BAXTER

[2014] FCCA 344

Catchwords:
FAMILY LAW – Parenting orders regarding young child with autism – slight conflict between reports, one of which comes from a therapist involved with the child (and the Mother), the other comes from an expert engaged by the Father – Mother’s resistance to engagement with independent specialist.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(c), (f), (g), (i), 61DA, 65DAA

Mazorski v Albright (2008) 37 Fam LR 518

Applicant:

MR SHARPE

Respondent:

MS BAXTER

File Number:

CAC 1269 of 2012

Judgment of:

Judge Neville

Hearing date:

21 November 2013

Date of Last Submission:

19 December 2013

Delivered at:

Canberra

Delivered on:

26 February 2014

REPRESENTATION

Counsel for the Applicant:

Self represented

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

Cater & Blumer, [G]

ORDERS

The child, [X], born [in] 2007, live with the Mother;
The Mother and Father have equal shared parental responsibility for [X], but that failing the parties being able to reach an agreement about a major decision to be made about [X]’s health, the Mother shall make the final decision;

[X]’s Autism

The Mother is to provide Ms T with a copy of Dr B’s report, dated 7 October 2013;
The Father is to attend one information session with Ms T prior to the commencement of [X]’s overnight time with his Father;
After three (3) months of overnight time, if there are any issues in relation to it:
(a)Ms T and Dr B are to work out a response/management strategy;
(b)
The Father and Mother are then to attend a joint session with

Ms T and Dr B to resolve any ongoing issues regarding overnight time;

[X]’s Time with his Father

After the Father has attended the information session with Ms T, [X] will spend time with his Father as follows:
(a)Each alternate weekend from after school Friday to the commencement of school Monday morning commencing Friday 7th March 2014 (unless an alternative commencement date is agreed in writing between the parties). If during holidays then collection will occur at 4pm on Friday and drop off at 9am on Monday;
(b)For two (2) weeks during the school holiday periods with the parties to agree as to which weeks and in the absence of agreement the Father to have the following:
(i)Week two (2) and week three (3) of the holidays commencing in the year 2014 and each even year thereafter;
(ii)Week four (4) and week five (5) of the holidays commencing in the year 2015 and each odd year thereafter;
(c)From 2pm Christmas Day to 2pm Boxing Day commencing in the year 2014 and each even year thereafter;
(d)From 4pm Christmas Eve to 2pm Christmas Day commencing in the year 2015 and each odd year thereafter;
(e)From 9:00am Good Friday to 4:30pm Easter Saturday commencing in the year 2014 and each even year thereafter;
(f)From 4:30pm Easter Saturday to 9:00am Easter Monday commencing in the year 2015 and each odd year…

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 Sharpe and Baxter

Details

AGLC: Sharpe and Baxter [2014] FCCA 344
Case: [2014] FCCA 344
Decision Date: 26 February 2014

CaseChat Overview and Summary

In the matter of Sharpe and Baxter, heard before Judge Neville, the dispute concerned parenting arrangements for a child, [X], born in 2007. The orders detailed the living arrangements for the child, the allocation of parental responsibility, and specific provisions for the child's time with each parent, as well as ancillary matters relating to communication, health, and education.

The court was required to determine the specific orders concerning the child's residence, the division of parental responsibility, and the detailed schedule for the child's time with both the mother and the father. This included establishing protocols for decision-making regarding the child's health, managing issues arising from the child's autism, and outlining the practical arrangements for the exchange of the child between parents, including holiday periods and special occasions. Furthermore, the court addressed ongoing communication, information sharing, and behavioural expectations between the parents.

The court made orders by consent in relation to several aspects of the parenting arrangements, including the child's residence with the mother, equal shared parental responsibility with the mother having final decision-making power on health matters, and a comprehensive schedule for the child's time with the father. The orders also stipulated that the father attend an information session regarding the child's autism prior to overnight stays, and established a framework for addressing any issues that may arise from these arrangements. Ancillary orders were made to ensure ongoing communication, information sharing regarding the child's health and education, and to promote a positive co-parenting relationship.

Orders

Orders of the court

The child, [X], born [in] 2007, live with the Mother;

The Mother and Father have equal shared parental responsibility for [X], but that failing the parties being able to reach an agreement about a major decision to be made about [X]’s health, the Mother shall make the final decision;

[X]’s Autism

The Mother is to provide Ms T with a copy of Dr B’s report, dated 7 October 2013;

The Father is to attend one information session with Ms T prior to the commencement of [X]’s overnight time with his Father;

After three (3) months of overnight time, if there are any issues in relation to it:

(a) Ms T and Dr B are to work out a response/management strategy;

(b)

The Father and Mother are then to attend a joint session with

Ms T and Dr B to resolve any ongoing issues regarding overnight time;

[X]’s Time with his Father

After the Father has attended the information session with Ms T, [X] will spend time with his Father as follows:

(a) Each alternate weekend from after school Friday to the commencement of school Monday morning commencing Friday 7th March 2014 (unless an alternative commencement date is agreed in writing between the parties). If during holidays then collection will occur at 4pm on Friday and drop off at 9am on Monday;

(b) For two (2) weeks during the school holiday periods with the parties to agree as to which weeks and in the absence of agreement the Father to have the following:

(i) Week two (2) and week three (3) of the holidays commencing in the year 2014 and each even year thereafter;

(ii) Week four (4) and week five (5) of the holidays commencing in the year 2015 and each odd year thereafter;

(d) From 4pm Christmas Eve to 2pm Christmas Day commencing in the year 2015 and each odd year thereafter;

(e) From 9:00am Good Friday to 4:30pm Easter Saturday commencing in the year 2014 and each even year thereafter;

(f) From 4:30pm Easter Saturday to 9:00am Easter Monday commencing in the year 2015 and each odd year thereafter;

(g) From 9am to 5pm on Father's Day every year;

(h) For a period of not less than four (4) hours on the child's and Father's birthdays every year;

(i) Unless otherwise agreed between the parties in writing, telephone contact each Wednesday in the off-week from 6:30pm, with the Father to initiate the call, and (subject to how the child is coping) for a duration of no more than thirty (30) minutes;

Outside school hours, any change-over take place at McDonald's Family Restaurant, [G];

[X]’s Time with his Mother

In addition to Order 1 of these orders, and notwithstanding Order 6 of these orders, the child is to spend time with his Mother as follows:

(a) From 9am to 5pm on Mother’s Day every year;

(b) For a period of not less than four (4) hours on the child’s and the Mother’s birthdays every year;

Ancillary Orders

Each party keep the other informed of any upcoming medical appointments for the child, including but not limited to, doctors’ appointments and specialist appointments so as to provide the other party with the opportunity to attend;

10.

Each party keep the other informed of the child's health and any health issues as well as procedures or operations to be undertaken prior to those operations of procedures being undertaken, except in cases of emergency (with the party in whose care the child is in to inform the other party as soon as possible);

11.

The parties are to authorise the child's doctors and specialists to provide copies of all reports and tests results regarding the child's health directly to each party;

12.

The Mother is to provide to the Father a copy of [X]’s asthma plan and the Father is to follow that plan when [X] is in his care;

13.

The Mother is to authorise the school to provide the Father with reports, notices of any school events, school newsletters, and any other similar information;

14.

The Father may attend any school or sporting function that the child is participating in; it is requested that he give the Mother at least one (1) days’ notice of his intention to do so;

15.

In the event the Mother is unable to care for the child, the Father be provided with the first option of care;

16.

Except in cases of emergency, the parties use a communication book to inform each other of matters referable to the child's welfare and the communication book is to accompany the child at changeover;

17.

The Mother and Father are to ensure that, except in cases of emergency, only the Mother and Father write in the communication book;

18.

Each party keep the other informed of their respective telephone numbers (including landline and mobile) and addresses;

19.

In the event the child becomes unduly upset and is not able to be settled by the Father, the Father is to return the child to the Mother’s care;

20.

The Mother and Mother’s partner encourage the child to refer to the Father as "Dad";

21.

Neither party denigrate the other party in the presence of the child;

22.

Each party inform the other if they are taking [X] out of the [G] area during the time that [X] is with them.

AND IT IS NOTED THAT:

A. Orders 1, 6(a), 6(c), 6(d), 6(e), 6(f), 6(i) 7, 9, 18, 19, 20 and 21 are made by consent.

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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