VALDEZ & FRAZIER - [2019] FamCA 12

FAMILY COURT OF AUSTRALIA

VALDEZ & FRAZIER

[2019] FamCA 12

FAMILY LAW – CHILDREN:- With whom a child lives – With whom a child spends time – With whom a child communicates - Application by father seeking a change of child’s residence and that initially mother not spend any time with the child for a period of three months – Application opposed by the mother – Mother alleges the father poses an emotional and psychological risk to the child and that the only way for the child to be protected is to spend less time with the father – Orders that child live with the mother – Orders that Mother have sole parental responsibility for the child – Orders that father spend time with the child – Specific Issues orders – Injunctive orders.

FAMILY LAW – PROPERTY - De facto property settlement – Contributions – Small asset pool -Superannuation – Orders made in circumstances where Court is satisfied it is just and equitable to do so.

Family Law Act 1975 (Cth) ss 31(1)(a)(aa), 60B, 60CC, 65(Y),
Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) ss 4, 4AA(1), 90SB

C & B [2007] FMCAfam 539
Norton v Locke [2013] FamCAFC 202

APPLICANT:

Mr Valdez

RESPONDENT:

Ms Frazier

FILE NUMBER:

SYC

2226

2013

DATE DELIVERED:

18 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

17, 18, 20, 21 & 24 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Longworth with
Ms Shea

SOLICITOR FOR THE RESPONDENT:

GG Attorneys

PARENTING ORDERS

All previous parenting orders in relation to B born … 2011 (‘the child’) be and are discharged.
Ms Frazier (‘the mother’) shall have sole parental responsibility for making decisions in relation to the child.
The child shall live with the mother.
The child shall spend time with Mr Valdez (‘the father’) as follows:-

School term

(a)During school term from after school Friday until before school Monday (or before school Tuesday in the event that the Monday is a public holiday or a student free day) every alternate week.
(b)Such alternate weeks commencing the first week after the end of the school holidays if the child was with the mother at the end of the preceding school holiday period or the second week after the commencement of school term if the child was with the father in the last week of the preceding school holidays;

School holidays

(c)for one half of the mid-term school holidays being the first half from after school Friday (or if a student free day, non-school day or Good Friday then 3.00pm Friday) to 12.00 noon the Saturday in the middle of the holidays in odd-numbered years and from 12.00 noon Saturday in the middle of the school holidays to the commencement of school Monday (or Tuesday if the Monday is a student free day) in even numbered years;
(d)in a week about arrangement in each of…

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 VALDEZ & FRAZIER

Details

AGLC: VALDEZ & FRAZIER [2019] FamCA 12
Case: [2019] FamCA 12
Decision Date: 18 January 2019

CaseChat Overview and Summary

The case of *Valdez & Frazier* concerned applications by both the father and mother regarding their child. The father sought orders for the child to live with him and for the mother to have no contact for three months, alleging she posed a risk. The mother opposed this, asserting the father posed an emotional and psychological risk to the child and that reduced time with the father was necessary for the child's protection. The court also considered applications for de facto property settlement.

The primary legal issues before Benjamin J were: firstly, in relation to the child, with whom the child should live, spend time, and communicate, and whether the mother should have sole parental responsibility; and secondly, in relation to property, whether it was just and equitable to make orders for a de facto property settlement, considering the small asset pool and superannuation interests.

In determining the parenting orders, the court applied the paramountcy principle that the best interests of the child are the primary consideration. The court found that the father posed an emotional and psychological risk to the child, and that it was not in the child's best interests to spend time with the father at that time. Consequently, orders were made for the child to live with the mother, for the mother to have sole parental responsibility, and for the father to spend time with the child at a later date, subject to specific conditions and injunctive orders. Regarding the property settlement, the court was satisfied that it was just and equitable to make orders, taking into account the contributions of the parties and the limited asset pool.

Orders