Tusk and Scailer - [2010] FamCA 751

FAMILY COURT OF AUSTRALIA

TUSK & SCAILER

[2010] FamCA 751

FAMILY LAW – CHILDREN – Parental Responsibility – Parties to have equal shared parental responsibility for the child
FAMILY LAW – CHILDREN – With whom a child lives and spends time – The mother and father both seek orders for the child to live with them and spend time with the other parent – Mother alleges the child at risk of harm in the father’s care – The Court finds on the evidence that the father does not constitute an unacceptable risk of sexual, physical or emotional harm to the child – Child to live with the mother and spend unsupervised time with the father each alternate weekend and half of school holidays

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth)

Bradshaw v McEwan’s Pty Ltd (1951) 217 ALR 1
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Jackson v Lithgow City Council [2008] NSWCA 312
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
M v B [2001] FamCA 894
MRR v GR (2010) 42 Fam LR 531
Palmer v Dolman [2005] NSWCA 361
Re David (1997) 22 Fam LR 489

APPLICANT:

Ms Tusk

RESPONDENT:

Mr Scailer

INDEPENDENT CHILDREN’S LAWYER:

Ms Adam, Adams & Associates

FILE NUMBER:

NCC

1030

2007

DATE DELIVERED:

27 August 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

21 & 22 July 2010 and
20 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rees SC

SOLICITOR FOR THE APPLICANT:

Ms Carty, Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hollins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Adams, Adams & Associates

Orders

All former parenting orders relating to the child S, born on … February 2005 (“the child”), are discharged.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
4.1During New South Wales public school terms, each alternate weekend from 5.30 pm Friday until 5.30 pm Sunday, commencing on the first Friday in each school term.
4.2During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
4.3During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Order 4.3 hereof is suspended from 3.00 pm on…

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 Tusk and Scailer

Details

AGLC: Tusk and Scailer [2010] FamCA 751
Case: [2010] FamCA 751
Decision Date: 27 August 2010

CaseChat Overview and Summary

This matter concerned the parenting arrangements for a child, S, born in February 2005, between the child's mother and father. The court was required to determine the specific orders regarding the child's residence, time spent with each parent, communication, surname, and the registration of paternity.

The court was asked to determine the legal issues surrounding the allocation of parental responsibility, the primary residence of the child, the quantum and nature of time the child would spend with each parent, and provisions for communication between the child and each parent. Further issues included the child's surname, the formal recognition of the father's paternity, and the parties' obligations regarding post-separation parenting programs, notification of contact details, and medical emergencies. The court also considered orders restraining denigration of a parent and the discharge of the Independent Children's Lawyer.

Justice Austin ordered the discharge of all former parenting orders and established equal shared parental responsibility. The child was to live with the mother, with specific, detailed arrangements for the child to spend time with the father during school terms and holidays, including Christmas. Provisions were made for the handover of the child and for private telephone communication between the child and each parent. The court also ordered that the child be known by the surname "Tusk" and that the father's paternity be registered on the child's birth certificate. The parties were ordered to enrol in and complete a post-separation parenting program, to exchange contact details, and to notify each other of medical emergencies. Crucially, both parties were restrained from denigrating the other in the child's presence. The Independent Children's Lawyer was discharged upon the expiry of the appeal period, and all outstanding applications, save for one, were dismissed.

Orders

Orders of the court

All former parenting orders relating to the child S, born on … February 2005 (“the child”), are discharged.

The mother and father shall have equal shared parental responsibility for the child.

The child shall live with the mother.

The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

4.1 During New South Wales public school terms, each alternate weekend from 5.30 pm Friday until 5.30 pm Sunday, commencing on the first Friday in each school term.

4.2 During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.

4.3 During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

Order 4.3 hereof is suspended from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.

For the purposes of implementation of Orders 4.2 and 4.3 hereof, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day between those first and last days.

For the purposes of implementing the time spent by the child with the father, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the McDonalds Restaurant at R, NSW, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the McDonalds Service Centre Restaurant at T, NSW.

Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

8.1 The father each Wednesday night that the child is living with the mother, 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 mother for that purpose, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

8.2 The mother each Wednesday night that the child is spending time with the father pursuant to Orders 4.2 and 4.3, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father for that purpose, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

8.3 The parent with whom the child is not then staying, on the child’s birthdays, between 6.00pm and 6.30pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

The parties are restrained from causing or permitting the child to be known by any surname other than “Tusk”.

10.

The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the father’s paternity of the child, and that a fresh birth certificate issues for the child disclosing the father’s paternity of the child.

11.

Pursuant to s 65LA of the Family Law Act, the parties shall forthwith enrol themselves to commence, and thereafter participate in and complete the post-separation parenting program known as “Keeping in Contact” conducted by Unifam Counselling and Mediation.

12.

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.

13.

Each party shall notify the other 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 other parent about the condition and treatment of the child.

14.

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.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16.

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

17.

Any and all outstanding applications, excluding the father’s Application in a Case filed on 19 June 2009, are dismissed.

Notation

A. For avoidance of doubt, the first occasion upon which the child will spend time with the father pursuant to Order 4.1 will commence at 5.30 pm on Friday 3 September 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.