Shaw and Brennan - [2008] FamCA 656

FAMILY COURT OF AUSTRALIA

SHAW & BRENNAN

[2008] FamCA 656

FAMILY LAW - CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Shaw

RESPONDENT:

Ms Brennan

INDEPENDENT CHILDREN’S LAWYER:

Adamsons Lawyers

FILE NUMBER:

SYF

3250

2006

DATE DELIVERED:

12 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

21-23 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

Mr Bransgrove

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Braine

Orders

General

The parties have equal shared parental responsibility for the major long-term issues in relation to the child, …, born … March 2006 (the Child).
The Child live with the mother as set out hereunder and at those times the mother be responsible for the Child's day to day care, welfare and development.
The Child live with the father as set out hereunder and at those times the father be responsible for the Child's day to day care, welfare and development.
For the purpose of this order the weeks of the year are divided up into either odd or even, where the first whole week of year in which 1 January falls is week 1, an odd week.
Each week is to start on a Monday and conclude on a Sunday.

Father’s Weekly Time Periods

The child is to live with the father during the following periods:
(a)       At present taking effect from the date of these orders:
(i)commencing the first Wednesday following these Orders, the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend every Friday with the father from 8.00 am to 6.00 pm
(iii)commencing the second Saturday from the date of these orders, the Child spends 1 night with the father each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.
(b)       Commencing 8 March 2009 (the child’s 3rd Birthday):
(i)the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend 2 nights with the father each alternate week from 10.00 am Friday to 10.00 am Sunday.
(c)       Commencing 1 January 2011 when the child is aged 5:
(i)the Child is to spend the night with the father each alternate week from 6.00 pm on Wednesday to 8.00 am the following morning
(ii)the Child is to spend 3 nights with the father each alternate week from the later of, 8.00 am Friday or the conclusion of school on Friday, to the later of 8.00 am Monday or the commencement of school on Monday morning.
(d)       Commencing when the Child is 7 years of age:
(i)The Child is to spend the night with the father each alternate Wednesday from the later of 8.00 am or the commencement of school to the latter of 8.00 am the following morning or the commencement of school
(ii)The Child is to spend 4 nights with the father each alternate…

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 Shaw and Brennan

Details

AGLC: Shaw and Brennan [2008] FamCA 656
Case: [2008] FamCA 656
Decision Date: 12 August 2008

CaseChat Overview and Summary

This matter concerned parenting orders between Shaw and Brennan, heard by Justice Fowler. The dispute revolved around the arrangements for the child, born in March 2006, including where the child would live and the time each parent would spend with the child.

The court was required to determine the terms of shared parental responsibility, the specific living arrangements for the child, and the detailed time periods each parent would have with the child, including provisions for weekdays, weekends, school holidays, and other special days. The court also needed to address practical matters such as pick-up and drop-off arrangements, communication between parents, travel, and provisions for the child's health and name.

Justice Fowler made orders for the parties to have equal shared parental responsibility for major long-term issues concerning the child. The child was ordered to live with the mother, with the mother responsible for the child's day-to-day care, welfare, and development, and also to live with the father at specified times, with the father similarly responsible for the child's day-to-day care during those periods. The orders detailed a progressive schedule for the father's time with the child, increasing from when the child was an infant until the age of 10, with specific arrangements for school holidays and other days such as birthdays and public holidays. Provisions were also made regarding the father's work commitments, communication protocols, travel, and the child's medical care and name. The court also set out a process for any applications for costs.

Orders

Orders of the court

General

The parties have equal shared parental responsibility for the major long-term issues in relation to the child, …, born … March 2006 (the Child).

The Child live with the mother as set out hereunder and at those times the mother be responsible for the Child's day to day care, welfare and development.

The Child live with the father as set out hereunder and at those times the father be responsible for the Child's day to day care, welfare and development.

For the purpose of this order the weeks of the year are divided up into either odd or even, where the first whole week of year in which 1 January falls is week 1, an odd week.

Each week is to start on a Monday and conclude on a Sunday.

Father’s Weekly Time Periods

The child is to live with the father during the following periods:

(a) At present taking effect from the date of these orders:

(i) commencing the first Wednesday following these Orders, the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning

(ii) the Child is to spend every Friday with the father from 8.00 am to 6.00 pm

(iii) commencing the second Saturday from the date of these orders, the Child spends 1 night with the father each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.

(b) Commencing 8 March 2009 (the child’s 3rd Birthday):

(i) the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning

(ii) the Child is to spend 2 nights with the father each alternate week from 10.00 am Friday to 10.00 am Sunday.

(i) the Child is to spend the night with the father each alternate week from 6.00 pm on Wednesday to 8.00 am the following morning

(ii) the Child is to spend 3 nights with the father each alternate week from the later of, 8.00 am Friday or the conclusion of school on Friday, to the later of 8.00 am Monday or the commencement of school on Monday morning.

(d) Commencing when the Child is 7 years of age:

(i) The Child is to spend the night with the father each alternate Wednesday from the later of 8.00 am or the commencement of school to the latter of 8.00 am the following morning or the commencement of school

(ii) The Child is to spend 4 nights with the father each alternate week from the later of 8.00 am or the conclusion of the child’s school day on Thursday to the latter of 8.00 am Monday or the commencement of school.

(e) Commencing when the Child is 10 years of age:

(i) The Child is to spend the week with the father each alternate week from the conclusion of school on Monday to 8.00 am or the commencement of school the following Monday.

School Holidays

From the time the Child reaches the age of 5 and from the time the Child commences school, the Child will spend one half the school holidays with the father, and the orders dealing with time with the father are otherwise suspended, as agreed. Failing agreement, in years that end with an odd number the Child will spend the first half of all school holidays that commence in that year with the father and conversely years that end with an even number the child will spend the second half of all school holidays that commence within that year with the father.

Other Days

Father

(a) The Father is to spend time periods with the Child:

(i) from 6.00 pm on Christmas Eve to midday on Christmas Day in 2008 and in even numbered years thereafter

(ii) from midday to 7.00 pm on Christmas Day in 2009 and in odd numbered years thereafter

(iii) from 8.00 am to 6.00 pm on the father’s birthday

(iv) from 8.00 am to 6.00 pm on Fathers Day.

(b) In respect to the Child’s Birthday, if it does not fall within the father’s weekly entitlement above, the father is to spend time with the child:

(i) from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day

(ii) from 10.00 am from 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day.

In the event that the father is unable by virtue of his work commitments to collect the child, the child may at the father’s option be collected for contact by the paternal grandmother, Ms B Shaw, the paternal aunt, Ms C Shaw, or the parental great-aunt, Ms U, or such other person as the parties may agree.

10.

The father shall provide to the mother by facsimile transmission or email a copy of each of his work rosters at least seven days prior to the commencement of the roster whilst ever he remains employed in the transport industry on roster.

11.

In the event that the father is required to work whilst on standby he is to provide the mother with 12 hours notice of the cancellation of any period when he is to spend time with the child but nothing in this provision will prohibit the parties agreeing that in lieu of the child spending time with the father the child may spend time with one or more of the persons nominated in order (9) hereof, or any other agreed person.

12.

Mother

(a) Save as provided for the child to live with the father the child shall live with the mother.

(b) The mother is entitled to spend the following time periods with the Child if any or all of the following days fall on the father’s “Weekly Time Periods” or “School Holiday” time periods:

(i) from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day

(ii) from 10.00 am to 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day

(iii) from 8.00 am to 6.00 pm on the mother’s birthday

(iv) from 8.00 am to 6.00 pm on Mothers Day.

Pick-up and Drop-off

13.

Unless otherwise agreed, that, for the purpose of the father spending time with the Child pursuant to these Orders, the father or his nominee collect the Child at the mother’s or other family residence, the Child’s daycare facility or the Child’s school, as appropriate. The mother or her nominee will collect the Child at the appropriate time from the father’s or other family residence and return the Child to the mother’s residence, the Child’s daycare facility or the Child’s school, as appropriate, except when the Child has spent the night with the father and is attending daycare or school the following day, then the father or his nominee will deliver the Child to the Child’s daycare facility or the Child’s school, as appropriate.

Communications

14.

The parties, unless otherwise agreed between them, communicate with each other in relation to the Child by email, except in the case of emergency.

15.

Within 7 days of the date of these Orders and within 48 hours of any change of such details, the mother is to provide to the father by email the names, addresses and telephone numbers of the Child’s treating doctors, dentists and childcare facilities.

16.

The mother authorise and request all treating doctors, dentists, childcare facilities, preschools and schools attended by the Child at any time to communicate with and to provide to the father copies of reports, correspondence, newsletters, et cetera.

Travel

17.

Both parties do all acts and things necessary to obtain a passport for the Child in the event that one party requests the other party’s cooperation in obtaining such passport.

18.

In the event that the father wishes to take the Child out of the Commonwealth of Australia, the mother provide the father with the Child’s passport within 7 days of the father requesting same and that the father return the Child’s passport to the mother within a reasonable time after the conclusion of the father’s overseas trip with the Child.

Illness

19.

In the event that the Child is seriously ill, is admitted or is to be admitted to hospital, the party in whose care the Child is at that time is to immediately notify the other party.

20.

The mother is to retain a non-family member as the Child’s treating doctor or other medical practitioner or provider and provide information to the father of the address and contact telephone numbers of such health care provider such that the father can contact any such provider when needed and discuss the Child’s medical needs at any time. Nothing in this order shall prevent or prohibit the mother from consulting a medically qualified family member concerning the child’s health in the event of a medical emergency.

Child’s Name

21.

The Child is to retain either her maternal or paternal family name.

22.

If the mother changes her family name from “[Brennan]”, the Child is to adopt her father’s family name “[Shaw]”, such that the Child’s family name reflects at least one of her parent’s family names.

23.

The mother is restrained from publishing or permitting to be published to the child any documents or records or account of these proceedings or otherwise discussing these proceedings with the child.

24.

Pursuant to Section 65DA(2) and Section 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.

Costs

25.

Any applicant for any order for costs is to file an application, which has a note of the costs sought and the basis on which they are sought, and serve it on any respondent to the application within 28 days of today’s date together with a written submission in support of such an application.

26.

Any respondent to any application for costs file within a further 21 days their response to the application, accompanied by a written submission in support of such response.

27.

In the event that either party wishes to adduce affidavit evidence in support of their application or response that material is to be filed with their written submissions.

28.

In the case of the father and mother, a statement of current financial affairs is to be filed in support of any such application or response.

29.

In the event that no applications are filed within 28 days the Court will not thereafter entertain an application for an order for 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.