Sinclair and Hatcher - [2014] FCCA 395

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINCLAIR & HATCHER

[2014] FCCA 395

Catchwords:
FAMILY LAW – Applicant seeks a declaration pursuant to s.90RD that the relationship was a “de facto relationship” – parties in a relationship for five years and have one child – parties did not live together, did not share property, did not pool resources, had a very turbulent relationship – found the parties did not live together on a “genuine domestic basis” and that the parties’ relationship was not a “de facto relationship.”
Parenting Matters – Mother seeks father have supervised daytime only time with the parties’ son aged four until the child starts school and then that time gradually increase to overnight unsupervised time – Father seeks immediate unsupervised time with the child graduating to overnight time within six weeks. Held child immediately start spending unsupervised time with the father to increase to overnight time within two months.

Legislation:

Family Law Act 1975 ss.4AA, 60B, 60CA, 60CC, 61DA, 65DAA, 90RJ, 90RD

Jonah v White [2011] FamCA 221
Taisha & Peng & Anor [2012] FamCA 385

Keene & Scofield (No.2) [2013] FCCA 1107

Sinclair & Whitaker [2013] Fam CAFC 129

Hayes & Markee [2008] NSWCA 10

Applicant:

MS SINCLAIR

Respondent:

MR HATCHER

File Number:

MLC 7391 of 2012

Judgment of:

Judge Bender

Hearing dates:

23, 24, 26, 27 September 2013

18, 19, 20, 21 November 2013

Date of Last Submission:

21 November 2013

Delivered at:

Melbourne

Delivered on:

6 March 2014

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Mr Hall

Solicitors for the Respondent:

CCS Lawyers

ORDERS

Section 90RD Application

The mother’s application pursuant to s.90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.

Parenting

The parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2009 (“X”).
X live with the mother.
X spend time and communicate with the father as follows:
(a)From 1.45pm until 3.45pm on 9 March 2014 and 16 March 2014 with changeover to occur at (omitted) Children's Contact Service (“(omitted)”) and a member of the (omitted) staff shall accompany the father and X on an outing from (omitted) for up to an hour during such time;
(b)From 1.45pm to 3.45pm on Sunday 23 March 2014 with changeover at (omitted);
(c)From 12.00 Noon to 4.00pm Sunday 6 April 2014, 13 April 2014, 20 April 2014 and 27 April 2014 with changeover at (omitted);
(d)
From 5.00pm Saturday to 5.30pm Sunday commencing

3 May 2014 and each alternate weekend thereafter;
(e)
From 4.00pm Friday to 5.30pm Sunday commencing

31 October 2014 and each alternate weekend thereafter;
(f)For two periods of three days in the long summer vacations in 2014/2015 and 2015/2016 as agreed between the parties and failing agreement the father’s time with X be extended to 5.30pm Monday on the first two weekends in the summer vacation that X is with the father pursuant to Order 4(e) herein;
(g)In the long summer vacation…

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 Sinclair and Hatcher

Details

AGLC: Sinclair and Hatcher [2014] FCCA 395
Case: [2014] FCCA 395
Decision Date: 6 March 2014

CaseChat Overview and Summary

The case involved an application by the mother pursuant to section 90RD of the *Family Law Act 1975* (Cth), which was dismissed by Judge Bender. The court also made orders regarding the parenting arrangements for the child, X.

The primary legal issues before the court were the mother's application under section 90RD and the determination of appropriate parenting orders, including the allocation of parental responsibility, the child's living arrangements, and the schedule for the child to spend time and communicate with the father. The court was required to consider the best interests of the child in making these determinations.

The court ordered that the parties have equal shared parental responsibility for X, with X to live with the mother. A detailed schedule was established for X to spend time and communicate with the father, including specific dates and times for weekend and holiday periods, as well as provisions for telephone contact. The orders also addressed changeover arrangements, outlined specific circumstances under which X's time with the father would be suspended, and included provisions for communication between the parties regarding X's schooling, health, and living arrangements. Furthermore, the court made orders restraining the parties from denigrating each other in X's presence and ordered the mother to undertake individual counselling.

Orders

Orders of the court

Section 90RD Application

The mother’s application pursuant to s.90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.

Parenting

The parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2009 (“X”).

X live with the mother.

X spend time and communicate with the father as follows:

(a) From 1.45pm until 3.45pm on 9 March 2014 and 16 March 2014 with changeover to occur at (omitted) Children's Contact Service (“(omitted)”) and a member of the (omitted) staff shall accompany the father and X on an outing from (omitted) for up to an hour during such time;

(b) From 1.45pm to 3.45pm on Sunday 23 March 2014 with changeover at (omitted);

(c) From 12.00 Noon to 4.00pm Sunday 6 April 2014, 13 April 2014, 20 April 2014 and 27 April 2014 with changeover at (omitted);

(d)

From 5.00pm Saturday to 5.30pm Sunday commencing

3 May 2014 and each alternate weekend thereafter;

(e)

From 4.00pm Friday to 5.30pm Sunday commencing

31 October 2014 and each alternate weekend thereafter;

(f) For two periods of three days in the long summer vacations in 2014/2015 and 2015/2016 as agreed between the parties and failing agreement the father’s time with X be extended to 5.30pm Monday on the first two weekends in the summer vacation that X is with the father pursuant to Order 4(e) herein;

(g) In the long summer vacation 2016/2017 for a period of 5 days as agreed between the parties and failing agreement from 10.00am Boxing Day;

(h) In the long summer vacation 2017/2018 for a period of 7 days as agreed between the parties and failing agreement from 10.00am Boxing Day;

(i) In the long summer vacation 2018/2019 and each long summer vacation thereafter for a period of 10 days as agreed between the parties and failing agreement from 10.00am Boxing Day;

(j) For three days in each of the term school holidays commencing in the first term holidays 2015 as agreed between the parties and failing agreement X’s time with the father be extended to 5.30pm on the Monday of the weekend during the term holidays X is spending with the father pursuant to Order 4(e) herein;

(k) If X is not otherwise with the father on Father’s Day pursuant to these orders then on the Father’s Day weekend in 2014 from 5.00pm Saturday to 5.30pm Sunday and from 4.00pm Friday to 5.30pm Sunday on the Father’s Day weekend 2015 and each year thereafter;

(l) By telephone each Wednesday and on X’s birthday between 5.00pm and 5.30pm with the father to call the mother’s mobile number and the mother shall ensure her phone is charged and that X is able to take the father’s call;

(m) From 10.00am Boxing Day to 5.30pm 27 December 2014 and each year thereafter;

(n) As otherwise agreed between the parties in writing.

Changeover for the time X spends with the father pursuant to Order 4(d) and Father’s Day 2014 shall take place by the mother delivering X to the home of Ms P and if Ms P is unavailable, to the foyer of (omitted) Police Station at the commencement of time and the father shall deliver X to the mother in the foyer of the (omitted) Police Station at the conclusion of time unless otherwise agreed between the parties in writing.

Changeover for the time X spends with the father pursuant to Order 4(e), 4(f), 4(g), 4(h), 4(i), 4(j), 4(k) and 4(m) herein shall take place by the father collecting X from the foyer of (omitted) Police Station at the commencement of time and the mother collecting X from the home of Ms P or if Ms P is unavailable the foyer of the (omitted) Police Station at the conclusion of time unless otherwise agreed between the parties in writing.

X’s time with the father pursuant to these orders shall be suspended as follows:

(a) On Mother’s Day weekend;

(b) From 10.00am on the Mother’s birthday, 26 March and 16 December;

(d) From 4.00pm on X’s birthday; and

(e) From the long summer vacation 2016/2017, time pursuant to Order 4(e) shall be suspended for one weekend in the long summer vacation as nominated by the mother upon her giving the father 28 days’ notice in writing.

In the event either party is delayed by more than 15 minutes in collecting or returning the child, they shall text the other party to notify them of the reason for the delay and their anticipated time of arrival.

When X is spending time with the father he shall be restrained from bringing X into contact with Ms M, D or Ms I unless the father is also present.

10.

Each party shall be entitled to attend X’s kindergarten and school for any activities or functions to which parents are invited and the father shall notify the mother by text message of his intention to attend any such function or activity 48 hours prior to such function or activity.

11.

Each party shall be authorised to obtain:

(a) From any kindergarten or school X attends, copies of school reports, newsletters, photograph order forms and other such information ordinarily provided to parents;

(b) From any medical practitioner X attends, information concerning X’s health and each party shall keep the other informed of the name and contact details of any health professional whom X consults.

12.

Each party keep the other informed of the address at which X ordinarily lives or spends time and the contact telephone number and notify the other within 72 hours of any change to such information.

13.

In the event X and the father stay overnight other than at the father’s residence, the father shall provide the mother with the address where they are staying by text message.

14.

Save for an emergency, or as provided for in these orders, the parties shall communicate by email and shall provide the other with an email address to be utilised for that communication.

15.

Each party shall advise the other of any serious illness or injury suffered by the X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

16.

The parties and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X, and from permitting any other person to do so.

17.

The mother undertake individual counselling with a psychologist nominated by Mr O in order to help the mother adjust to the obligations imposed upon her by these orders and the mother shall provide to the counsellor a copy of this Order, the reasons for judgment in relation to parenting matters, the psychiatric report of Dr T dated 30 April 2013 and the Family Reports of Mr O dated 20 February 2013 and 26 August 2013, and such counselling to continue on a regular basis until the counsellor advises the mother in writing that the purpose of the counselling has been achieved.

18.

For the purposes of Order 17 herein, it is requested that Mr O first speak to the mother’s current counsellor to ascertain whether that counsellor is able to undertake the counselling referred to in Order 17 herein and thereafter Mr O advise the mother of the counsellor nominated by him.

19.

The father forthwith provide a copy of these orders to Ms P and it is requested Ms P assist with the changeover in accordance with Order 7 and Order 8 herein.

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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