Sitch and Jacobs - [2014] FCCA 419

FEDERAL CIRCUIT COURT OF AUSTRALIA

SITCH & JACOBS

[2014] FCCA 419

Catchwords:
FAMILY LAW – Parenting orders – whether adjournment to facilitate psychiatric assessment of mother – long history of co-operation post separation between parties – alleged injury to child’s penis – whether too frequent medical examinations of child – alleged self-harm by child – whether change of interim live with and time spent arrangements necessary – consideration of factors.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 62B, 65AA(1), (2) and (3), 65DA(2)

Carnegie v Ginter [2013] FamCA 331

Hall & Hall (1979) 5 FamLR 609
W & W [2005] FamCA 892

Applicant:

MS SITCH

Respondent:	MR JACOBS
File Number:	MLC 10230 of 2009

Judgment of:

Judge Antoni Lucev

Hearing dates:

28 and 29 August, 26, 27 and
30 September 2013

Date of Last Submission:

30 September 2013

Delivered at:

Melbourne

Delivered on:

7 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr T Weerappah

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

Ms R Teicher (28 August 2013)

Solicitor for the Respondent:

Nicolaides & Associates (to 29 August 2013)

For the Respondent:

In person

In person (29 August and 26, 27 and
30 September 2013

Counsel for the Independent Children's Lawyer:	Mr N M Eidelson
Solicitors for the Independent Children's Lawyer:	McKean Park

ORDERS

That the child of the marriage, X, born (omitted) 2004, live with the Mother.
That the Mother and Father share equal parental responsibility for the Child.
That the Child spend time with and communicate with his Father as follows:
(a)on each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school;
(b)on each Wednesday from the conclusion of school until the commencement of school on Thursday;
(c)during school term holidays for one half as agreed, but failing agreement from school breakup until 5.00pm on the second Saturday of the holidays;
(d)during summer holidays for one half at a time agreed, but failing agreement in the first half in 2014/15 and each alternate year thereafter and the second half in 2015/16 and each alternate year thereafter;
(e)from 24 December 2014 at 4.00pm until 25 December 2014 at 4.00pm and each alternate year thereafter and from 25 December 2015 at 4.00pm until 26 December 2015 at 4.00pm and each alternate year thereafter;
(f)on Father’s Day weekend from Saturday at 5.00pm until the following Monday at the commencement of school and in the event that the Father’s time with the Child pursuant to these orders occurs on the Mother’s Day weekend, then his time shall be suspended on that weekend from Saturday at 5.00pm.
(g)on the Child’s birthday as follows:
(i)on a school day from school breakup until 7.00pm, the Father to collect the Child from the school and return to the outside of the Mother’s home;
(ii)on a non-school day from 1.00pm until 6.00pm, the Father to collect and return the Child from and to the outside of the Mother’s home, and in the event the Child is…

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 Sitch and Jacobs

Details

AGLC: Sitch and Jacobs [2014] FCCA 419
Case: [2014] FCCA 419
Decision Date: 7 March 2014

CaseChat Overview and Summary

In the matter of Sitch and Jacobs, heard by Judge Antoni Lucev, the dispute concerned parenting orders for the child of the marriage, X. The specific arrangements for the child's living arrangements, parental responsibility, and time spent with each parent were at issue.

The court was required to determine the primary residence of the child, the extent to which the parents would share parental responsibility, and the detailed schedule for the child's time with the father, including weekends, mid-week contact, school holidays, Christmas, Father's Day, and the child's birthday. Further issues included the child's communication with parents, the father's right to receive school communications, his liberty to attend school functions, and prohibitions against interviewing the child regarding abuse allegations without agreement or court order. The court also had to consider orders restraining both parents and their associates from discussing proceedings with the child or denigrating the other parent.

Judge Lucev made orders that the child, X, would live with the Mother and that both parents would share equal parental responsibility. The orders then set out a comprehensive schedule for the child's time with the Father, encompassing alternate weekends, mid-week contact, specific arrangements for school holidays and Christmas, Father's Day, and the child's birthday, with provisions for communication and the Father's access to school information and functions. Crucially, the court ordered that neither parent, nor their associates, could discuss the proceedings with the child or denigrate the other parent to the child. The court also restrained both parents from having the child interviewed by a psychologist, counsellor, or medical practitioner regarding abuse allegations, except by mutual agreement, court order, or in an emergency. The court dismissed all extant proceedings, discharged the Independent Children's Lawyer, and noted the application of sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth). The issue of costs was to be determined on the papers if sought by either party.

Orders

Orders of the court

That the child of the marriage, X, born (omitted) 2004, live with the Mother.

That the Mother and Father share equal parental responsibility for the Child.

That the Child spend time with and communicate with his Father as follows:

(a) on each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school;

(b) on each Wednesday from the conclusion of school until the commencement of school on Thursday;

(c) during school term holidays for one half as agreed, but failing agreement from school breakup until 5.00pm on the second Saturday of the holidays;

(d) during summer holidays for one half at a time agreed, but failing agreement in the first half in 2014/15 and each alternate year thereafter and the second half in 2015/16 and each alternate year thereafter;

(e) from 24 December 2014 at 4.00pm until 25 December 2014 at 4.00pm and each alternate year thereafter and from 25 December 2015 at 4.00pm until 26 December 2015 at 4.00pm and each alternate year thereafter;

(f) on Father’s Day weekend from Saturday at 5.00pm until the following Monday at the commencement of school and in the event that the Father’s time with the Child pursuant to these orders occurs on the Mother’s Day weekend, then his time shall be suspended on that weekend from Saturday at 5.00pm.

(g) on the Child’s birthday as follows:

(i) on a school day from school breakup until 7.00pm, the Father to collect the Child from the school and return to the outside of the Mother’s home;

(ii) on a non-school day from 1.00pm until 6.00pm, the Father to collect and return the Child from and to the outside of the Mother’s home, and in the event the Child is otherwise in the Father’s care on the non-school day pursuant to these orders, he shall be returned to the Mother from 1.00pm until 6.00pm on that day;

(h) at such other times as maybe agreed upon in writing.

The Child may communicate with the Father and Mother by telephone or electronic means of communication at any time.

The Father shall by these orders be authorised to receive from the Child’s school a copy of all printed material, including photos, at his expense if any, which the school produces for release to parents in relation to the Child’s social and academic progress.

The Father be at liberty to attend all school functions which parents are at liberty to attend including school concerts, school sporting events and parent teacher meetings.

The Father and Mother be restrained from permitting the Child to be interviewed or examined by any psychologist, counsellor or medical practitioner in relation to any allegations of abuse concerning the Child, save for where the interview or examination occurs by mutual written agreement of both parents or by order of the Court, except in an emergency.

The Father and Mother, their servants and agents, including members of their family or their partner, be restrained from:

(a) discussing these proceedings or any affidavits or reports which form part of these proceedings with the Child or within his hearing;

(b) denigrating, insulting or abusing the other parent or any member of their family or their partner, to the Child or within his hearing.

Except where otherwise specified in these orders, changeover shall be at the (omitted) in (omitted), outside of the front entrance.

10.

All extant proceedings be dismissed.

11.

The appointment of the Independent Children’s Lawyer be discharged.

12.

The provisions of ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) apply hereto.

13.

Certificate for Counsel.

14.

If either party seeks costs, then written submissions should be filed within 14 days and any written reply to those submissions within a further seven days and the issue of costs will be determined by the Court on the papers.

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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