Sproat and Brimm - [2012] FMCAfam 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPROAT & BRIMM

[2012] FMCAfam 105

FAMILY LAW – Children – interim parenting orders – relocation – unilateral decision to relocate – best interests of the children – equal shared parental responsibility – substantial and significant time – three children – where two children have specific educational needs – where mother has relocated with children from Sydney to (omitted).

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631
Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343

Applicant:

MR SPROAT

Respondent:

MS BRIMM

File Number:

SYC 7819 of 2011

Judgment of:

Scarlett FM

Hearing date:

18 January 2012

Date of Last Submission:

18 January 2012

Delivered at:

Sydney

Delivered on:

18 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Robyn Sexton & Associates

Counsel for the Respondent:

Ms Paraska

Solicitors for the Respondent:

Longman Hill Solicitors

ORDERS

UNTIL FURTHER ORDER

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the relationship Y born (omitted) 2003, Z born (omitted) 2004 and X born (omitted) 2008.
The Respondent Mother is restrained from removing the residence of the children Y, Z and X outside the Sydney Metropolitan Area.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the children Y and Z commence to attend the S. School at (omitted) on the first day of Term 1 in 2012.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the child X continues to attend the B. School with effect from 30 January 2012.
The Respondent Mother is restrained from enrolling the children Y and Z at the C. School at (omitted) or any other school than the S. School at (omitted) without the consent of the Applicant Father or Order of the Court.
The Respondent Mother is restrained from enrolling the child X at the (omitted) Centre at (omitted) or any other pre-school than the B. School without the consent of the Applicant Father or Order of the Court.
The Respondent Mother is to do all things necessary to ensure that the children Y, Z and X return to live at an address within the Sydney Metropolitan Area by 28 January 2012.
The Respondent Mother must inform the Applicant Father by 25 January 2012 whether she intends to continue to reside in (omitted) or intends to return to reside in the Sydney Metropolitan Area.
In the event that the Respondent Mother continues to reside in (omitted) or otherwise outside the Sydney Metropolitan Area after 28 January 2012 then the children Y, Z and X are to live with the Father and spend time with the Mother as follows:
(a)Each…

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 Sproat and Brimm

Details

AGLC: Sproat and Brimm [2012] FMCAfam 105
Case: [2012] FMCAfam 105
Decision Date: 18 January 2012

CaseChat Overview and Summary

The case of Sproat and Brimm involves the parties, the Applicant Father and the Respondent Mother, who are engaged in a dispute regarding the care and parenting arrangements for their three children, born in 2003, 2004, and 2008. The Family Court of Australia was tasked with resolving the legal issues arising from the parents' conflict over the children's residence and educational placements. The court was required to determine the allocation of parental responsibility and the specific arrangements for the children's living situation, schooling, and visitation schedules. Additionally, the court had to address the parents' conduct towards each other and the children, including restrictions on derogatory language and physical discipline.

The court deliberated on the legal issues presented, including the best interests of the children in terms of their health, education, and emotional well-being. The court assessed the parents' ability to provide for the children's needs, their capacity to foster relationships between the children and the other parent, and the children's relationships with each parent. The reasoning involved a detailed examination of the parents' proposals and the expert evidence provided. The outcome mandated equal shared parental responsibility, with specific restrictions on the Mother's ability to relocate the children outside the Sydney Metropolitan Area and detailed provisions for the children's schooling and visitation schedules. The court also imposed restrictions on the parents' conduct towards each other and the children, and mandated the appointment of an Independent Children’s Lawyer and a Single Expert to report on the children’s best interests.

The court issued comprehensive orders to ensure the children's welfare, including equal shared parental responsibility, restrictions on the Mother's relocation, and specific educational and visitation arrangements. The orders also included provisions for the children's attendance at particular schools, limitations on enrolling the children in other schools without consent, and mandates for the children to return to the Sydney Metropolitan Area. The court further detailed the children's visitation schedules with each parent, depending on whether the Mother resides within or outside the Sydney Metropolitan Area after a specified date. Additionally, the court prohibited the parents from using critical or derogatory language in the presence of the children and from using physical discipline. The court also directed the parties to engage an Independent Children’s Lawyer and a Single Expert to report on various aspects of the children's welfare and best interests. The application was adjourned for further mention.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children of the relationship Y born (omitted) 2003, Z born (omitted) 2004 and X born (omitted) 2008.

The Respondent Mother is restrained from removing the residence of the children Y, Z and X outside the Sydney Metropolitan Area.

The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the children Y and Z commence to attend the S. School at (omitted) on the first day of Term 1 in 2012.

The Applicant Father and the Respondent Mother are to do all such things and complete all such documents as may be necessary to ensure that the child X continues to attend the B. School with effect from 30 January 2012.

The Respondent Mother is restrained from enrolling the children Y and Z at the C. School at (omitted) or any other school than the S. School at (omitted) without the consent of the Applicant Father or Order of the Court.

The Respondent Mother is restrained from enrolling the child X at the (omitted) Centre at (omitted) or any other pre-school than the B. School without the consent of the Applicant Father or Order of the Court.

The Respondent Mother is to do all things necessary to ensure that the children Y, Z and X return to live at an address within the Sydney Metropolitan Area by 28 January 2012.

The Respondent Mother must inform the Applicant Father by 25 January 2012 whether she intends to continue to reside in (omitted) or intends to return to reside in the Sydney Metropolitan Area.

In the event that the Respondent Mother continues to reside in (omitted) or otherwise outside the Sydney Metropolitan Area after 28 January 2012 then the children Y, Z and X are to live with the Father and spend time with the Mother as follows:

(a) Each alternate weekend during the school term from immediately after school on the Friday until the commencement of school on the Monday or, if the Monday is a Public Holiday, then until the commencement of school on the Tuesday, the first of such weekends being the weekend commencing Friday 3 February 2012;

(b) On the weekend that includes Mother’s Day from immediately after school on the Friday before Mother’s Day until the commencement of school on the Monday morning after Mother’s Day;

(c) For a period of not less than two (2) hours on each of the children’s birthdays if that day falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Mother would not otherwise be spending time with the children in accordance with these Orders;

(d) For a period of not less than two (2) hours on the Mother’s birthday if that day falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Mother would not otherwise be spending time with the children in accordance with these Orders;

(e) For the first half of each school holiday period commencing immediately after school on the last day of the school term and concluding at 6.00 pm on the middle Saturday of the school holidays; and

(f) At such other times as the parties shall agree.

10.

Notwithstanding the provisions of Order 9 above, the children Y, Z and X will spend time with the Father:

(a) On the weekend that includes Father’s Day; and

(b) For a period of not less than two (2) hours on the Father’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the children would not otherwise be in the care of the Father according to these Orders.

11.

In the event that the Respondent returns to live in the Sydney Metropolitan Area after 28 January 2012 then the children Y, Z and X are to live with the Mother and spend time with the Father as follows:

(b) On the weekend that includes Father’s Day from immediately after school on the Friday before Father’s Day until the commencement of school on the Monday morning after Father’s Day;

(c) For a period of not less than two (2) hours on each of the children’s birthdays if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Father would not otherwise be spending time with the children in accordance with these Orders;

(d) For a period of not less than two (2) hours on the Father’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the Father would not otherwise be spending time with the children in accordance with these Orders;

(e) For the first half of each school holiday period commencing immediately after school on the last day of the school term and concluding at 6:00pm on the middle Saturday of the school holidays; and

(f) At such other times as the parties shall agree.

12.

Notwithstanding the provisions of Order 11 above, the children Y, Z and X will spend time with the Mother:

(a) On the weekend that includes Mother’s Day; and

(b) For a period of not less than two (2) hours on the Mother’s birthday if the birthday falls on a week day or not less than four (4) hours on a weekend day if that day should fall on a day when the children would not otherwise be in the care of the Mother according to these Orders.

13.

Each party is restrained from using critical or derogatory language to the other or otherwise denigrating the other in the presence or hearing of the children or permitting any third person to do so.

14.

The parties are restrained from using any physical discipline on any of the children.

15.

The interests of the children Y, Z and X are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid NSW is requested to arrange such representation.

16.

The parties are to forward to Legal Aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and other relevant documents within fourteen (14) days.

17.

The Independent Children’s Lawyer is given leave to issue up to eight (8) subpoenas.

18.

The parties are to engage Dr B to prepare a Single Expert Report in relation to the children Y, Z and X in relation to the following matters:

(a) Whether there are any psychological or psychiatric factors relevant to the health and caregiving capacity of each of the parents;

(b) The capacity of each parent to provide for the needs of each of the children, including emotional and developmental needs when the children are in the care of that parent;

(c) The Single Expert’s opinion as to the capacity of each parent to promote each child’s future relationship with the other parent;

(d) The relationship and attachment of each child with:

(e) Each parent;

(i) Each other; and

(ii) Any other persons significant to their care.

(f) A recommended parenting schedule as being in the best interests of the children having regard to their ages and stages of development and any other relevant matter;

(g) Any views expressed by the children or any of them in relation to their care and the time spent with each parent and any factors that are relevant to an evaluation of the level of maturity of each child; and

(h) Any other matter or circumstance considered by the Single Expert to be relevant to the best interests of the children.

19.

The parties are to pay the costs of the Single Expert in equal shares forthwith upon completion of the Report and before its release to the Court as required by the Single Expert.

20.

The parties are to forward to the Single Expert copies of all Applications, Responses and affidavits filed on their own behalf and any other document considered relevant.

21.

The Application is adjourned to Monday 12 March 2012 at 10:00am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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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