Sykes and Sykes - [2013] FamCA 922

FAMILY COURT OF AUSTRALIA

SYKES & SYKES

[2013] FamCA 922

FAMILY LAW – CHILDREN – PARENTING ORDERS – Where final parenting orders were made by consent in 2010 – Where the father seeks that the 2010 orders be discharged and new orders be made – Where the mother opposes the father’s application but proposes that the 2010 orders be varied – Where both of the parties were self-represented.
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Best interests – Where the Court considered the presumption of equal shared parental responsibility and whether, in this case, the presumption had been rebutted – Where the Court found that it was in the child’s best interests to make an order for sole parental responsibility in relation to significant long term decisions.
FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – Best interests – Where the father seeks that the child lives with him and where the mother seeks that the child lives with her – Where the child has a half-sister who lives with the mother – Where the father wishes for the child to live and attend school in Sydney and the mother wishes for the child to live and attend school on the Central Coast of New South Wales.
FAMILY LAW – FAMILY VIOLENCE – Where in the past there was an incident of family violence perpetrated by the father against the mother – Where the incident was not given such significant weight as to outweigh the Court’s greater concern with respect to the mother’s inability to foster the child’s relationship with the father.

FAMILY LAW – FINANCIAL PROCEEDINGS – SETTLEMENT IN RELATION TO MARRIAGE – Where final property orders were made in 2010 – Where each of the parties now seek to have those orders varied – Where neither party sought an order pursuant to s 79A of the Act – Where on the evidence there was found to be no ground which could have invoked s 79A of the Act – Where the applications for financial orders sought by each of the parties were dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Sykes

RESPONDENT:

Ms Sykes

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

950

2009

DATE DELIVERED:

27 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

30 & 31 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

KDB Holmes Solicitors

Orders

IT IS ORDERED

That all previous parenting orders in relation to the child X born … 2006 be discharged.
That the child X (“the child”) born … 2006 shall live with Mr Sykes (“the father”).
That the father shall have sole parental responsibility in relation to significant long term decisions for the child.
That the father and Ms Sykes (“the mother”) shall each have parental responsibility in relation to day…

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: [2013] FamCA 922
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications by Mr Sykes (the father) and Ms Sykes (the mother) concerning financial matters and parenting arrangements for their child, X. The father sought to discharge existing final parenting orders made by consent in 2010 and have new orders made, proposing that the child live with him and that he have sole parental responsibility for significant long-term decisions. The mother opposed the father's application but proposed variations to the 2010 orders, seeking that the child live with her on the Central Coast. Both parties represented themselves.

The court was required to determine several legal issues. Firstly, it had to consider the father's application to vary the final property orders made in 2010, and the mother's counter-application to vary those same orders. Secondly, and centrally, the court had to determine the parenting arrangements for the child, including with whom the child would live and the allocation of parental responsibility, considering the presumption of equal shared parental responsibility and whether it had been rebutted. The court also had to assess the impact of past family violence perpetrated by the father against the mother and the mother's capacity to foster the child's relationship with the father.

In relation to the financial matters, the court found no grounds to invoke section 79A of the Family Law Act 1975 (Cth) and therefore dismissed both parties' applications to vary the property orders. Regarding parenting, the court considered the child's best interests, noting the mother's relocation of the child to the Central Coast without prior notice to the father. Despite an incident of family violence perpetrated by the father in the past, the court gave it less weight than its concern regarding the mother's inability to foster the child's relationship with the father. The court found that it was in the child's best interests to make orders for the child to live with the father and for the father to have sole parental responsibility for significant long-term decisions, while both parents would share responsibility for day-to-day matters.

The court ordered that all previous parenting orders be discharged and that the child live with the father. The father was granted sole parental responsibility for significant long-term decisions, with both parents sharing responsibility for day-to-day matters. Detailed provisions were made for the child's time with the mother, including alternate weekends during school terms and specific arrangements for school holidays. The court also made orders restraining each parent from denigrating the other and requiring them to keep each other informed of the child's health and education. The applications for financial orders were dismissed.

Orders