STEVENSON & SHEPHERD - [2015] FCCA 1306

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEVENSON & SHEPHERD

[2015] FCCA 1306

Catchwords:
FAMILY LAW – Parenting – final orders by consent – consideration of Rice & Asplund principles – consideration of the asserted change in circumstances – consent arrangements to effect some changes in terms of the mother’s application and the father’s response – where such circumstances are not outside the normal vicissitudes of life – where it is in the best interests of a child if litigation is finalised – otherwise both parties’ applications be dismissed.

Legislation:

Family Law Act 1975, ss.60B, 60CC

Carriel & Lendrum [2015] FamCAFC 43
Miller & Harrington (2008) FLC 93-383
Newling & Newling; Mole (Applicant) (1987) FLC 91-85
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

Applicant:

MS STEVENSON

Respondent:

MR SHEPHERD

File Number:

SYC 6311 of 2011

Judgment of:

Judge Kemp

Hearing date:

24 April 2015

Date of Last Submission:

24 April 2015

Delivered at:

Sydney

Delivered on:

21 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Blackah

Solicitors for the Applicant:

Miller Goddard Solicitors

The Respondent appeared in person.

Counsel for the Independent Children's Lawyer:

Ms Conte-Mills

Solicitors for the Independent Children's Lawyer:

John Spence & Associates

THE COURT ORDERS THAT:

By consent, the final parenting orders made on 14 March 2013, 24 April 2013 and 10 March 2014 be varied as follows:
(a)That order 5.1.1 made on 14 March 2013 shall commence in the first week of the school term when the father has spent time with X during the first half of the immediately preceding school holiday period and where the father has spent time with X in the second half of that school holiday period, then order 5.1.1 herein shall commence in the second week of the school term.
(b)That order 6 made on 14 March 2013 be varied by deleting the word “shall” and substituting the word “may” in the first sentence, deleting the word “text” and substituting the word “written”, deleting the words “dinner on the day he spend with X in accordance with order 5.1.2 herein” and substituting the words “special occasions should the father wish to do so and advise what, where and at what time the occasion is to be”, by deleting the words “a dinner” in the final sentence and substituting the words “an occasion” and by deleting the words “after dinner” where they appear in that order, so that order 6 now reads:
That the father may send a written message to Y and Z inviting them to special occasions should the father wish to do so and advise what, where and at what time the occasion is to be. And should Y and/or Z agree to attend such an occasion, the father will do all things necessary to facilitate that attendance including collecting them and delivering them home, or as they require.
(c)Order 9 of the orders dated 14 March 2013 be varied by the addition of the words “unless…

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 STEVENSON & SHEPHERD

Details

AGLC: Stevenson and Shepherd [2015] FCCA 1306
Case: [2015] FCCA 1306
Decision Date: 21 May 2015

CaseChat Overview and Summary

This matter concerned an application to vary final parenting orders made between the parties, identified as Stevenson and Shepherd. The dispute centred on the terms governing the time children would spend with each parent, communication between parents and children, and the definition of school holiday periods. The decision was made by Judge Kemp.

The court was required to determine the specific variations to be made to existing parenting orders. These included amendments to the commencement of parental time during school holidays, the father's ability to invite children to special occasions, travel restrictions for the children, and the discharge of certain previous orders relating to communication and the role of an Independent Children's Lawyer. The court also needed to consider provisions for Mother's Day and Father's Day, and the care of the child during specific holidays and birthdays.

The variations to the parenting orders were made by consent of the parties. The court applied the principle that consent orders in family law matters reflect the agreement of the parties regarding the best interests of the child. The reasoning involved a detailed amendment of specific clauses within the existing orders to reflect the agreed-upon arrangements. This included substituting permissive language for mandatory language, clarifying communication protocols, and redefining the temporal parameters of school holidays to facilitate clearer changeovers.

By consent, the court varied the final parenting orders as detailed in the judgment. The mother's Initiating Application and the father's Response were otherwise dismissed. The appointment of the Independent Children's Lawyer was discharged, and the matter was removed from the active pending cases list. The court also noted that the child would remain in the care of the parent currently with her for Easter, Christmas, and her birthday, unless otherwise agreed in writing.

Orders

Orders of the court

By consent, the final parenting orders made on 14 March 2013, 24 April 2013 and 10 March 2014 be varied as follows:

(a) That order 5.1.1 made on 14 March 2013 shall commence in the first week of the school term when the father has spent time with X during the first half of the immediately preceding school holiday period and where the father has spent time with X in the second half of that school holiday period, then order 5.1.1 herein shall commence in the second week of the school term.

(b) That order 6 made on 14 March 2013 be varied by deleting the word “shall” and substituting the word “may” in the first sentence, deleting the word “text” and substituting the word “written”, deleting the words “dinner on the day he spend with X in accordance with order 5.1.2 herein” and substituting the words “special occasions should the father wish to do so and advise what, where and at what time the occasion is to be”, by deleting the words “a dinner” in the final sentence and substituting the words “an occasion” and by deleting the words “after dinner” where they appear in that order, so that order 6 now reads:

That the father may send a written message to Y and Z inviting them to special occasions should the father wish to do so and advise what, where and at what time the occasion is to be. And should Y and/or Z agree to attend such an occasion, the father will do all things necessary to facilitate that attendance including collecting them and delivering them home, or as they require.

(c) Order 9 of the orders dated 14 March 2013 be varied by the addition of the words “unless in the case of an emergency or an urgent need to travel” at the end of that order.

(d) Order 10 of the orders dated 14 March 2013 be discharged.

(e) Order 11 of the orders dated 14 March 2013 be discharged and the following order 11 be substituted in lieu thereof:

11. For the purposes of these orders, X’s school holiday periods are defined as follows:

(i) The commencement of the school holiday period shall be at the conclusion of the last day of each school term and conclude at the commencement of the first day of the following school term at which X is required to attend school.

(ii) The school holiday time halfway point, for the purposes of changeover, shall be deemed to be at 10.00am on the middle day where there is an even number of days and where there is an odd number of days (and an even number of nights) the changeover shall be at 5.00pm on the first middle day.

(f) Order 1 of the orders dated 24 April 2013, be varied by the deletion of the words “subject to the orders made on 14 March 2013” and of the words “save that the parties do all things reasonably required to encourage the engagement of any of the children with Unifam, pursuant to order 10 made on 14 March 2013, if so directed by Unifam in writing”.

(g) Order 2 of the orders dated 24 April 2013 be discharged.

By consent, notwithstanding these orders, X shall spend time with the mother from 9.00am to 5.00pm on Mother’s Day and with the father from 9.00am to 5.00pm on Father’s Day, or as otherwise agreed in writing.

Otherwise, the mother’s Initiating Application is dismissed.

Otherwise, the father’s Response is dismissed.

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

The matter is otherwise removed from the active pending cases list.

THE COURT NOTES THAT:

X shall remain in the care of the parent who has her in their care pursuant to these orders for Easter, Christmas and her birthday unless otherwise agreed in writing.

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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