Stamford & Jewel & Anor - [2011] FamCA 890

FAMILY COURT OF AUSTRALIA

STAMFORD & JEWEL & ANOR

[2011] FamCA 890

FAMILY LAW – CHILDREN – parental responsibility – with whom a child shall live – parties agree the maternal grandmother should have sole parental responsibility for the child – orders made for maternal grandmother to have sole parental responsibility
FAMILY LAW – CHILDREN – with whom a child shall spend time – section 60CC primary considerations - where child’s primary attachment was with the maternal grandmother and where the child has a meaningful relationship with the father – risk of harm posed to child by exposure to mother’s erratic behaviour caused by her psychiatric condition and her continued use of illicit drugs – risk of child being emotionally harmed by exposure to father’s suspected drug use and his violent behaviour towards his current partner – child not at unacceptable risk of emotional harm whilst child is in father’s care - orders made for child’s time with mother to be supervised by maternal grandmother and for child to spend unsupervised time with father

FAMILY LAW – CHILDREN – section 60CC additional considerations – consideration of practical difficulty and expense of child spending time with father - where the only viable method of transport between the two households is a road journey of five hours by private car – where father is in a slightly better position to undertake more of the travelling – where father has not paid any child support for the child - orders made for parties to travel approximately equal distances to begin the child’s time with the father but the father will need to travel further than maternal grandmother to return the child to her

FAMILY LAW – CHILDREN – Aboriginality - where parties assert that child has Aboriginal heritage through maternal family – where aboriginality is not raised as an issue for consideration or the right of the child to enjoy aspects of that culture or the likely impact of the proposed parenting orders upon that right – held that in such circumstances it is not for the court to develop the issues

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Family Law Rules 2004 (Cth) rr 16.08, 16.09

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Malcolm & Monroe & Anor (2011) FLC 93-460
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394

APPLICANT:

Mr Stamford

1st RESPONDENT:

Ms Jewel

2nd RESPONDENT:

Ms Nickel

INDEPENDENT CHILDREN’S LAWYER:

Ms Olsen, Boyd Olsen Lawyers

FILE NUMBER:

NCC

2134

2009

DATE DELIVERED:

23 November 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

1 & 2 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weightman

SOLICITOR FOR THE APPLICANT:

Bell & Johnson Solicitors

COUNSEL FOR THE 1ST RESPONDENT:

Ms Carty

SOLICITOR FOR THE 1ST RESPONDENT:

Jason Curtis, Solicitor

COUNSEL FOR THE 2ND RESPONDENT:

Mr…

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.

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Details

Case: [2011] FamCA 890
Decision Date: 23 November 2011

CaseChat Overview and Summary

The matter before Austin J concerned parenting orders for a child, B, born in 2004. The parties involved were the child's mother, the child's father, and the child's maternal grandmother. The primary dispute revolved around the child's living arrangements and time spent with each parent, with the maternal grandmother seeking sole parental responsibility.

The court was required to determine the most appropriate parenting orders for the child, considering the primary considerations under section 60CC of the Family Law Act, including the child's best interests, the child's relationship with each party, and any risks of harm. Specifically, the court had to assess the risk of emotional harm to the child arising from the mother's erratic behaviour, psychiatric condition, and drug use, as well as the risk posed by the father's suspected drug use and violent behaviour. The court also considered additional factors, such as the practical difficulties and expense associated with the child spending time with the father, including the significant travel distance between the parties' residences and the father's history of not paying child support. The assertion of Aboriginal heritage was noted but not pursued as an issue by the parties.

Austin J reasoned that the child's primary attachment was with the maternal grandmother, and the child had a meaningful relationship with the father. The court found that while there were risks associated with both parents, the child was not at an unacceptable risk of emotional harm in the father's care. The court also acknowledged the practical challenges of the father's distance from the child and his financial obligations. Consequently, the court ordered that the maternal grandmother have sole parental responsibility for the child, with the child to live with her. The mother's time with the child was to be supervised by the maternal grandmother, while the father was granted unsupervised time with the child, with specific arrangements for the frequency and duration of this time, including provisions for travel and communication. The court also made orders restraining the consumption of alcohol by the father during periods of his care, prohibiting smoking in the child's presence, and requiring parties to refrain from denigrating each other in the child's hearing.

Orders

Orders of the court

All former orders relating to the child B, born … 2004, (“the child”) are discharged.

The second respondent maternal grandmother (“the maternal grandmother”) shall have sole parental responsibility for the child.

The child shall live with the maternal grandmother.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the first respondent mother (“the mother”) at times and under circumstances determined by the maternal grandmother, supervised personally by the maternal grandmother.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the applicant father (“the father”) as follows, unless otherwise agreed between the father and maternal grandmother:

(a) For a period of six months following the date of these orders, on the first Saturday of each month from 10.00 am until 4.30 pm; and

(b) Thereafter:

(i) During NSW public school terms, from 10.00 am on the fifth Friday of the term until 4.30 pm on the following Sunday;

(ii) During NSW public school holidays, except Christmas school holidays, for the first week of the school holidays commencing at 10.00 am on the first Saturday after the last day at school and concluding at 4.30 pm on the following Saturday; and

(iii) During NSW public school Christmas holidays, for two weeks, commencing at 10.00 am on the first Saturday after the last day at school in December 2012 and concluding at 4.30 pm on the second following Saturday (and every alternate year thereafter), and commencing at 10.00 am on the first Saturday in January 2014 and concluding on the second following Saturday (and every alternate year thereafter).

For the purposes of implementing Order 5(a) hereof, unless otherwise agreed between the father and maternal grandmother:

(a) On the first, third, and fifth occasions, the maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the public tennis courts at C Town, NSW, and the father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the same place; and

(b) On the second, fourth, and last occasions, the maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at D Town, NSW, and the father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the same place.

For the purpose of implementing Order 5(b) hereof, unless otherwise agreed between the father and maternal grandmother:

(a) The maternal grandmother shall deliver and the father shall collect the child at the commencement of the time to be spent with the father at the public tennis courts at C Town, NSW; and

(b) The father shall deliver and the maternal grandmother shall collect the child at the conclusion of the time spent with the father at the McDonalds Restaurant at D Town, NSW

Unless otherwise agreed between the father and maternal grandmother, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with the father each Monday and Thursday, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the maternal grandmother, and the maternal grandmother shall ensure that the child is able to receive the father’s calls on that number at that time.

The father is restrained from consuming alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.

10.

Each party is restrained from allowing the child to remain in any car, house, or other confined space in the presence of any person who is smoking.

11.

Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

12.

The maternal grandmother and father shall notify one another of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the parties about the condition and treatment of the child.

13.

The maternal grandmother shall authorise and request the principal of any school attended by the child to provide to the father and mother, at their expense, copies of all school reports and school photograph order forms relating to the child.

14.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17.

Any and all outstanding applications are dismissed.

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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