Sherwin and Sherwin - [2009] FMCAfam 777

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHERWIN & SHERWIN

[2009] FMCAfam 777

FAMILY LAW – Parenting – final parenting orders – alteration to include additional overnight time to end of 2009 school year.

Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 65DAA, 65DAA(3), 65DAA(5)
Federal Magistrates Courts Rules 2001, r.16.05(2)(e)

Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295

Applicant:

MS SHERWIN

Respondent:

MR SHERWIN

File Number:

MLC 1365 of 2008

Judgment of:

Monahan FM

Hearing dates:

16-18 June, 23-24 July 2009

Date of Last Submission:

24 July 2009

Delivered at:

Melbourne

Delivered on:

18 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Glover

Solicitors for the Applicant:

David Stagg Tonkin & Co

Counsel for the Respondent:

Mr J. Williams

Solicitors for the Respondent:

Slater & Gordon Pty Ltd

ORDERS

THE COURT ORDERS THAT:

Paragraph 4(a) of the Orders made 18 December 2008 be varied as follows:
“(a)at the commencement of the 2010 school year, each alternate week during school term from after school Friday until the beginning of school on Wednesday; and
(aa)until the end of the 2009 school year, each alternate week during school term from after school Friday until the beginning of school on Monday (or Tuesday morning if the long weekend) and each Wednesday commencing 7 October 2009 from after school until the commencement of school the following morning.”
Pursuant of section 13C of the Family Law Act 1975 the Wife and the Husband:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party.

IT IS NOTED that publication of this judgment under the pseudonym Sherwin & Sherwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1365 of 2008

MS SHERWIN

Applicant

And

MR SHERWIN

Respondent

REASONS FOR JUDGMENT

Introduction

This case commenced with an application filed 15 February 2008 by Ms Sherwin (“the wife”) seeking various property orders. This application (as amended by the wife’s “further amended application” filed 11 June 2009) is opposed by the respondent Mr Sherwin (“the husband”) who, in his response filed 31 March 2008, seeks different property orders. In addition, the husband also sought various parenting orders in his response. These parenting orders were opposed by the wife who sought different orders in her “amended application” filed 16 April 2008.
Final parenting orders were made by me with the consent…

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 Sherwin and Sherwin

Details

AGLC: Sherwin and Sherwin [2009] FMCAfam 777
Case: [2009] FMCAfam 777
Decision Date: 18 September 2009

CaseChat Overview and Summary

The matter of Sherwin and Sherwin came before the court in relation to a dispute regarding the parenting arrangements for the parties' children. The parents, referred to as the Husband and the Wife, had previously agreed on certain parenting arrangements, which were set out in orders made on 18 December 2008. The Husband sought to vary these arrangements, particularly regarding the time the children were to spend with each parent. The Wife, on the other hand, opposed these changes. The court had to decide on the appropriate parenting arrangements that would serve the best interests of the children.

The central legal issues before the court were whether the existing parenting arrangements should be altered, and if so, what specific changes should be implemented. The court had to consider the evidence and submissions from both parties, including the children's wishes and the impact of any proposed changes on their welfare. Additionally, the court was required to assess whether both parents should undertake a post-separation parenting program as recommended by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.

The court found that the existing parenting arrangements should be varied to better accommodate the children's needs and the parents' respective circumstances. The court approved the Husband's proposed changes to the time the children spend with each parent, noting that these adjustments would allow for more flexibility and better align with the children's school schedules. The court also ordered both parents to attend and complete a post-separation parenting program to ensure they could effectively co-parent and support their children's well-being. The court's reasoning was based on the best interests of the children, taking into account their age, needs, and the overall family dynamics. The final orders reflect these decisions, with specific changes to the parenting arrangements and a requirement for both parents to complete the parenting program.

Orders

Orders of the court

THE COURT ORDERS THAT:

Paragraph 4(a) of the Orders made 18 December 2008 be varied as follows:

“(a) at the commencement of the 2010 school year, each alternate week during school term from after school Friday until the beginning of school on Wednesday; and

(aa) until the end of the 2009 school year, each alternate week during school term from after school Friday until the beginning of school on Monday (or Tuesday morning if the long weekend) and each Wednesday commencing 7 October 2009 from after school until the commencement of school the following morning.”

Pursuant of section 13C of the Family Law Act 1975 the Wife and the Husband:

(a) attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

(d) provide an appropriate certificate of completion of the program to the other party.

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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