Vine and Vine - [2017] FamCA 908

FAMILY COURT OF AUSTRALIA

VINE & VINE

[2017] FamCA 908

FAMILY LAW – CHILDREN – Rice & Asplund argument – Spend time with – Where the parties entered a consent order in 2016 which specified the mother’s time with the subject child – Where the subject child has not spent time with the mother pursuant to the consent order – Consideration of the best interests of the child – Where the father promotes a relationship between the mother and the child – Where the mother proposes a gradual reintroduction of time – Where it is ordered that time with the subject child pursuant to the consent order is suspended and gradual time to commences between the mother and the subject child – Application upheld.

Family Law Act 1975 (Cth) ss 60CC, 62(g)

Freeman and Freeman (1987) FLC 91-857
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch [2009] 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Vine

RESPONDENT:

Mr Vine

FILE NUMBER:

ADC

638

2013

DATE DELIVERED:

10 November 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

3 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Lennon

SOLICITOR FOR THE RESPONDENT:

Marilyn Lennon Solicitor

Orders

That paragraphs 10 and 14 of the orders made 16 August 2016 be suspended.
That the proceedings be adjourned to 13 December 2017 at 9.15 am.
That during the period of the adjournment X born … 2006 (“the child”) shall spend time with the mother each Wednesday from the conclusion of school (or 3 pm if not a school day) to 7.30 pm.
That the time that the child is to spend with the mother pursuant to these orders is to be taken in the absence of Mr S (“the mother’s partner”).

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vine & Vine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 638 of 2013

Ms Vine

Applicant

And

Mr Vine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Vine (“the father”) and Ms Vine (“the mother”) are the parents of X born in 2006 (“X”), Y born in 2008 (“Y”) and Z born in 2009 (“Z”), collectively (“the children”).
Following three years of litigation, the parties resolved the parenting dispute in respect of the children by a consent order made 16 August 2016.
The parties have equal shared parental responsibility for the children, but that…

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

AGLC: Vine and Vine [2017] FamCA 908
Case: [2017] FamCA 908
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the matter of *Vine and Vine*, Berman J of the Family Court of Australia considered an application to vary existing parenting orders. The dispute concerned the time the child, X, born in 2006, would spend with the mother.

The court was required to determine whether to suspend certain paragraphs of previous orders made on 16 August 2016 and to make interim orders regarding the child's time with the mother pending further proceedings.

Berman J ordered the suspension of paragraphs 10 and 14 of the 16 August 2016 orders. The court then adjourned the proceedings to 13 December 2017. Crucially, during the adjournment period, the child was to spend time with the mother each Wednesday from the conclusion of school (or 3 pm if not a school day) until 7.30 pm. This time was to be spent in the absence of the mother's partner, Mr S.

Orders

Orders of the court

That paragraphs 10 and 14 of the orders made 16 August 2016 be suspended.

That the proceedings be adjourned to 13 December 2017 at 9.15 am.

That during the period of the adjournment X born … 2006 (“the child”) shall spend time with the mother each Wednesday from the conclusion of school (or 3 pm if not a school day) to 7.30 pm.

That the time that the child is to spend with the mother pursuant to these orders is to be taken in the absence of Mr S (“the mother’s partner”).

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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