Timmins and Zadrima - [2018] FamCA 100

FAMILY COURT OF AUSTRALIA

TIMMINS & ZADRIMA [2018] FamCA 100
FAMILY LAW – CHILDREN – With whom a child lives – Where consent orders were made in 2013 that provided the child live with the mother and spend time with the father – Where the child has a rare genetic disorder – Where the child has a meaningful relationship with both parents – Where in 2016 the mother placed the child in the care of the father – Where the child has flourished in the care of the father – Where the father has the support of external paternal and maternal family members – Where the mother breached orders by relocating the child and bringing the child into contact with her new partner –Where a change in the child’s residence would take an unacceptable risk of destabilising the child – Where there is no prospect of open honest communication between the parties about issues involving the welfare of the child – Where the practical difficulty and expense of the child travelling between the two households is a genuine consideration – Ordered the father have sole parental responsibility for the child and the child live with the father – Ordered the mother spend time with the child two weekends per school term and time during school holidays

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Timmins

RESPONDENT: Ms Zadrima

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW G Town Family Law

FILE NUMBER: NCC 1507 of 2012

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 15 – 19 January 2018
REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Haricharan

COUNSEL FOR THE RESPONDENT: Not Applicable

THE RESPONDENT: Representing herself

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Betts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW G Town Family Law
Orders
1.That all previous parenting orders in relation to B, born … 2008 (“the child”) be discharged.
2.That the father have sole parental responsibility for the child.
3.That the father keep the mother advised in writing [which may include email or text] of decisions taken in relation to long-term issues, such as education, religious instruction and health.
4.That the child live with the father.
5.That the mother spend time with the child as follows:
a.During each school term on the third and sixth weekend of that term from 4:30 pm Friday until 4:30 pm Sunday, commencing 9 March2018 [Sixth weekend of Term 1];
b.For one week during each of the NSW school holiday periods at the end of terms 1, 2 and 3 commencing Saturday 7 July 2018.[End of Term 2]

c.Unless otherwise agreed in writing between the parties, the mother’s time with the child in even numbered years will commence at 4:30 pm on the first Saturday of the holiday and conclude at 4:30 pm on the second Saturday, and in odd numbered years the mother’s time with the child will commence at 4:30 pm on the second…

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: [2018] FamCA 100
Decision Date: 26 February 2018

CaseChat Overview and Summary

Cleary J made orders in parenting proceedings between the father, Mr Timmins, and the mother, Ms Zadrima, concerning their child, B. The dispute concerned the future living arrangements and parental responsibilities for B.

The court was required to determine the appropriate parenting orders for B, including issues of parental responsibility, living arrangements, and time spent between the child and each parent. The court also considered orders relating to communication, the prevention of denigration, and the provision of information regarding the child's health and education.

Cleary J discharged all previous parenting orders and made new orders. The father was granted sole parental responsibility and B was ordered to live with him. The mother was granted specific time with B during school terms and holidays, with detailed provisions for changeovers and communication. The orders also included restraints on corporal punishment and denigration of each parent and their extended families, and obligations for each parent to keep the other informed of the child's health and educational matters. The court also authorised the release of medical and school information to the mother.

Orders

Orders of the court

1. That all previous parenting orders in relation to B, born … 2008 (“the child”) be discharged.

2. That the father have sole parental responsibility for the child.

3. That the father keep the mother advised in writing [which may include email or text] of decisions taken in relation to long-term issues, such as education, religious instruction and health.

4. That the child live with the father.

5. That the mother spend time with the child as follows:

a. During each school term on the third and sixth weekend of that term from 4:30 pm Friday until 4:30 pm Sunday, commencing 9 March2018 [Sixth weekend of Term 1];

b. For one week during each of the NSW school holiday periods at the end of terms 1, 2 and 3 commencing Saturday 7 July 2018.[End of Term 2]

c. Unless otherwise agreed in writing between the parties, the mother’s time with the child in even numbered years will commence at 4:30 pm on the first Saturday of the holiday and conclude at 4:30 pm on the second Saturday, and in odd numbered years the mother’s time with the child will commence at 4:30 pm on the second Saturday of the holiday and conclude at 4:30 pm on the last Saturday;

d. During the NSW school holidays at the end of Term 4:

i. For Term 4 holidays commencing in even numbered years, from midday on the first day after the last day of Term 4 until midday on 30 December [commencing 20 December 2018]; and

ii.For Term 4 holidays commencing in odd numbered years, from midday on 27 December until midday on 6 January;

iii.Every year the mother shall spend time with the child from midday on the second last Friday of the Term 4 holiday period until midday on the last Friday of that period.

e. On the Mother’s Day weekend, from 4:30 pm Friday until 4:30 pm Sunday and in the event that the Mother’s Day weekend does not fall on the third or sixth weekend, time spent with the child is to be in substitution for the closer one of those weekends.

f. In the event that Father’s day falls on the third or sixth weekend of a term, time that the child would spend with the mother on that weekend shall be suspended and shall take place on the following weekend.

g. The mother may spend time with the child at such other and/or additional times, if any, as agreed between the parties in writing [which may include by exchange of text message].

6. For the purposes of changeover, the father shall deliver the child to the mother at Suburb C Train Station at the commencement of the mother’s time for weekends and the mother shall return the child to the father at Suburb C Train Station at the conclusion of that weekend time.

7. For the purposes of changeover for school holidays, the father shall deliver the child to the mother at Suburb D Train Station at the commencement of the mother’s time and the mother shall return the child to the father at Suburb D Train Station at the conclusion of that holiday time.

8. The mother is at liberty to communicate with the child by telephone each Tuesday and Thursday between 6:00 pm and 6:30 pm, with the mother to initiate such telephone call to the father’s mobile number.

9. Each party is restrained from causing or permitting the infliction of corporal punishment on the child.

10. While within the child’s presence or hearing, each party is restrained from:

a. Denigrating the other parent;

b. Denigrating any members of the other parent’s extended family;

c. Denigrating the other parent’s partner;

d. Denigrating the other parent’s friends; or

e. allowing any other person to engage in such denigration.

11. If the child suffers any illness, injury or medical emergency whilst in the care of a parent such that medical treatment is required, then that parent is to notify the other parent about the matter as soon as possible.

12. The father is to ensure that a copy of these orders is provided to:

a. the child’s current treating General Practitioner;

b. the child’s current treating Paediatrician;

c. Any school/s attended by the child.

13. These orders authorise the medical practitioner/s referred to in Order 12 (a) and 12 (b) to provide the mother (at her expense) any and all medical information that the mother may request in relation to the child’s health care and treatment.

14. These orders authorise any school/s attended by the child to provide to the mother (at her expense) copies of all school reports, photograph forms and any information or document/s ordinarily provided by the school/s to parents of a student.

15. Each party shall forthwith keep the other party informed, in writing, of their respective mobile telephone number and address and inform the other party in writing of any change to those details within five (5) days.

16. That in the event that the mother elects to undertake dialectical behaviour therapy (“DBT”), she is at liberty to provide her treating DBT practitioner with a copy of these orders (and Reasons for Judgment) and a copy of the single expert report of Dr E filed in these proceedings.

17. That the Registrar of this Court provide a copy of these orders (and the Reasons for Judgment) to the New South Wales Department of Family and Community Services.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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COUNSEL FOR THE APPLICANT:	Not Applicable
SOLICITOR FOR THE APPLICANT:	Mr Haricharan