Templeton and Champion and Anor - [2015] FamCA 586

FAMILY COURT OF AUSTRALIA

TEMPLETON & CHAMPION AND ANOR

[2015] FamCA 586

FAMILY LAW – CHILDREN –Where parenting proceedings between the father, mother and maternal grandmother – Where only arrangements between the father and maternal grandmother determined – Where the significant issue is the time the maternal grandmother spends with the child – Where there is an issue of the effect of time with the maternal grandmother on the behaviour of the child – The child’s best interests – Consideration of the primary considerations and relevant additional considerations.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Templeton

1st RESPONDENT:

Ms Champion

2nd RESPONDENT:

Ms O’Dowd

INDEPENDENT CHILDREN’S LAWYER:

Louise Coady Family Lawyer

FILE NUMBER:

PAC

2058

2012

DATE DELIVERED:

23 July 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17, 18 and 19 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE 1ST RESPONDENT:

Ms Conte-Mills

SOLICITOR FOR THE 1ST RESPONDENT:

Fay Rose Legal

COUNSEL FOR THE 2ND RESPONDENT:

Ms Barnett

SOLICITOR FOR THE 2ND RESPONDENT:

Horizons Community Legal Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Louise Coady Family Lawyer

Orders

That the child B born … 2006 spend time with the maternal grandmother as agreed between the father and maternal grandmother in writing, such writing to include email and SMS communication, and in default of agreement as follows:
(a)       During school terms on the first weekend of each month commencing on the first Friday of that month from 3:00pm Friday to 5:00pm Saturday provided always that such time shall be suspended on the Father’s Day weekend with such time to occur in lieu at the election of the father on either the weekend before or the weekend after the Father’s Day weekend,
(b)       From 9:00am Monday to 5:00pm Friday in the first week of the school holiday period occurring at the conclusion of school term 2 (the June/ July school holidays) or otherwise as agreed,
(c)       During the Christmas school holidays from 9:00am on the second Monday in January until 5:00pm the following Friday or otherwise as agreed,
(d)       On the Sunday after the child’s birthday for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm,
(e)       Approximate to but not on Christmas Eve or Christmas Day, during the day only, for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm on 23 December each year,
(f)…

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: [2015] FamCA 586
Decision Date: 23 July 2015

CaseChat Overview and Summary

This matter concerned an application by the maternal grandmother for orders regarding her time with the child, B, born in 2006. The dispute involved the father and the maternal grandmother, with the court being the Federal Circuit Court of Australia, presided over by Foster J. The orders sought and ultimately made by the court were detailed and specific, outlining the arrangements for the child's time with the maternal grandmother, communication protocols between the parties, and various restrictions and obligations placed upon both the father and the maternal grandmother.

The court was required to determine the specific terms and conditions under which the child, B, would spend time with the maternal grandmother. This included establishing a schedule for contact during school terms and holidays, as well as provisions for communication, changeovers, and the exchange of important information regarding the child's well-being, education, and health. Furthermore, the court had to consider and make orders concerning the facilitation of the child's contact with the mother, the conduct of the maternal grandmother in the child's presence, and the provision of medical information.

In reaching its decision, Foster J applied principles of family law concerning the best interests of the child. The court's reasoning is reflected in the detailed orders made, which sought to balance the child's relationship with the maternal grandmother with the father's parental responsibilities. The orders established a framework for shared responsibility and communication, including specific provisions for notification of commitments, disclosure of behavioural and health issues, and restrictions on smoking and alcohol consumption by the maternal grandmother. The court also made orders regarding the facilitation of contact with the mother and the protection of the father's and child's privacy.

The final orders of the court established a comprehensive schedule for the child B's time with the maternal grandmother, including specific arrangements for weekends, school holidays, birthdays, and Christmas. The orders also imposed various obligations on both parties, such as providing contact details, notifying of significant events, and facilitating communication. Notably, the maternal grandmother was restrained from facilitating contact between the child and the mother except as agreed by the father, and both parties were restrained from denigrating each other in the child's presence. Proceedings concerning the mother's time with the child were adjourned for further case management.

Orders

Orders of the court

That the child B born … 2006 spend time with the maternal grandmother as agreed between the father and maternal grandmother in writing, such writing to include email and SMS communication, and in default of agreement as follows:

(a) During school terms on the first weekend of each month commencing on the first Friday of that month from 3:00pm Friday to 5:00pm Saturday provided always that such time shall be suspended on the Father’s Day weekend with such time to occur in lieu at the election of the father on either the weekend before or the weekend after the Father’s Day weekend,

(b) From 9:00am Monday to 5:00pm Friday in the first week of the school holiday period occurring at the conclusion of school term 2 (the June/ July school holidays) or otherwise as agreed,

(c) During the Christmas school holidays from 9:00am on the second Monday in January until 5:00pm the following Friday or otherwise as agreed,

(d) On the Sunday after the child’s birthday for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm,

(e) Approximate to but not on Christmas Eve or Christmas Day, during the day only, for a period of not less than 6 hours as agreed in writing, such writing to include email and SMS communication, and in default of agreement from 12 noon to 6:00pm on 23 December each year,

(f) That the maternal grandmother shall communicate with the child by telephone between 6:00pm and 6:30pm each Sunday if the child is not otherwise in her care that day and at such other times as agreed in writing such writing to include email and SMS communication and for the purpose of this order the father shall provide to the maternal grandmother a contact telephone number on which the child will be available and ensure that the child is available to receive such calls and shall afford the child reasonable privacy during such calls.

Provided always that if the child has a significant family or social commitment that the father wishes to take the child to or have his wife take the child to on a weekend or holiday period when the child is due to be in the care of the maternal grandmother then:

(a) The father will notify the maternal grandmother of the commitment by email as soon as possible and in any event in the event of a weekend at least one week in advance and in the event of a holiday period at least one month before the commencement of the holiday period; and

(b) The child’s time with the maternal grandmother will instead occur at a time to be agreed between the father and the maternal grandmother or failing agreement if a weekend on the weekend after it was due to occur and if a holiday period in the following school holiday period.

That as soon as practicable and no later than 24 hours before the child is to spend time with the maternal grandmother the father will send an email to the maternal grandmother notifying her of any behavioural or disciplinary issues and or health or dietary issues the child has that the father wishes the maternal grandmother to be aware of during the child’s time with her and the maternal grandmother shall use her best endeavours to reasonably implement any health regime or behavioural strategy of which she is so informed.

That the maternal grandmother be restrained from facilitating time or communication between the child and the mother other than in accordance with orders unless with the written consent of the father.

That the maternal grandmother be restrained from smoking in the immediate presence of the child and shall remove the child from the vicinity of any third party who may be smoking.

That the maternal grandmother be restrained from consuming alcohol during any period that the child is in her care.

That the maternal grandmother shall facilitate the child’s attendance at all sporting, extra-curricular, social or schooling events that may fall in the period that the child is spending time with her and the father shall provide to the maternal grandmother details of such events in a timely manner and in any event not less than 72 hours before the child is to commence spending time with the maternal grandmother.

That the maternal grandmother and the mother are at liberty to attend the child’s special school events including concerts, assembly, event days and presentations.

That the father shall provide to the maternal grandmother a copy of the child’s school report within 14 days of receiving same from time to time.

10.

That changeovers for the purposes of the maternal grandmother’s time during school term be facilitated by the maternal grandmother facilitating collection of the child from school on Friday afternoon and returning the child at the conclusion of that time to the father’s home or such reasonable midway point as nominated by the father in writing including email or SMS communication in a timely manner and in any event no later than 24 hours before the conclusion of the child’s time with the maternal grandmother.

11.

That otherwise changeovers be facilitated by the maternal grandmother facilitating collecting and returning the child to and from the father’s home or such midway point as nominated by the father in writing including email or SMS communication in a timely manner and in any event no later than 24 hours before the conclusion of the child’s time with the maternal grandmother.

12.

That the father shall pass on to the child unopened letters, gifts or items sent by the maternal grandmother to the child,

13.

That the father and maternal grandmother will each provide the other with and keep the other informed of any changes to their residential address, their contact email address and their contact telephone number including landline and mobile phone numbers.

14.

That the maternal grandmother be restrained from passing on to the mother details of the father’s residential address or contact details and shall use her best endeavours to prevent any other person from doing so.

15.

That the father as soon as practicable give written authorities to Dr C or any other treating psychiatrist or psychologist so that the maternal grandmother may contact the practitioner to discuss with them and receive from the information regarding the child’s diagnosis, treatment and any recommendations for the care of the child whilst the child is in her care.

16.

That the father and maternal grandmother shall keep each other informed of any significant illness or injury suffered by the child whilst in their care,

17.

That the maternal grandmother is entitled to attend the child’s school events, sporting events and extracurricular activities that regularly allow for family attendance and participation.

18.

That the parties are restrained from denigrating the other or members of their family in the presence of or hearing of the child and shall remove the child from the presence of any third party who may do so.

19.

That proceedings as to the mother’s time with the child be adjourned for further case management hearing to 9.30am on 22 March 2016 noting that the Independent Children’s Lawyer has leave to relist on short notice.

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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