WALDEN & COOPER - [2018] FamCA 595

FAMILY COURT OF AUSTRALIA

WALDEN & COOPER

[2018] FamCA 595

FAMILY LAW – CHILDREN – Parenting Responsibility – Where allocation of parental responsibility for the children was in dispute – Where the mother sought sole parental responsibility and the father sought equal shared parental responsibility – Where the Independent Children’s Lawyer supported an order for equal shared parental responsibility – Concluded the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence – Concluded the evidence otherwise demonstrates the children’s interests would be best served by the parties being vested with equal shared parental responsibility – Ordered that the parties have equal shared parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives – Where the parties agree the children should continue to live with the mother – Ordered that the children live with the mother.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother sought a slowly graduating regime culminating in the children spending each alternate weekend and time during the school holidays with the father – Where the father sought a flexible arrangement to accommodate his work roster – Where the mother conceded the father poses no risk of harm to the children – Where the mother abandoned her proposal for the children’s permanent supervision whilst in the father’s care – Where the distance between the parties’ residences makes it impractical for the children to live with the parties for ‘equal time’ or to spend ‘substantial and significant’ time with the father – Where the children would benefit from a stable and predictable routine – Where a gradual expansion of time with the father is in the children’s best interests due to the eldest child’s anxiety about being away from the mother and the youngest child’s infancy – Ordered the children spend time with the father in accordance with a regime which culminates in each alternate weekend and school holiday periods.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 65DAA, 65Y

APPLICANT:

Mr Walden

RESPONDENT:

Ms Cooper

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

SYC

5366

2017

DATE DELIVERED:

6 August 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

3 & 4 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

Orders

All former orders relating to the following children (“the children”) are discharged:
(a)X, born … 2010; and
(b)Y, born … 2015.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father:
(a)Until 30 September 2018, each Saturday from 9.00 am until 3.00…

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 WALDEN & COOPER

Details

AGLC: WALDEN & COOPER [2018] FamCA 595
Case: [2018] FamCA 595
Decision Date: 6 August 2018

CaseChat Overview and Summary

In the matter of WALDEN & COOPER, the dispute concerned the allocation of parental responsibility for two children, X and Y. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility. The Independent Children’s Lawyer supported the father's application for equal shared parental responsibility. The case was heard by Austin J.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given allegations of family violence. It also needed to ascertain the children's best interests regarding their living arrangements and the time they would spend with each parent.

Austin J concluded that the presumption of equal shared parental responsibility did not apply due to reasonable grounds to believe the father had engaged in family violence. However, the court found that the evidence otherwise demonstrated that the children's interests would be best served by the parties sharing parental responsibility equally. The court ordered that the children live with the mother and that the parties have equal shared parental responsibility. The court also made detailed orders regarding the time the children would spend with the father, commencing with supervised contact and gradually expanding to alternate weekends and school holiday periods, taking into account the children's ages and the eldest child's anxiety.

Orders

Orders of the court

All former orders relating to the following children (“the children”) are discharged:

(a) X, born … 2010; and

(b) Y, born … 2015.

The parties shall have equal shared parental responsibility for the children.

The children shall live with the mother.

The parties shall take all reasonable steps to ensure the children spend time with the father:

(a) Until 30 September 2018, each Saturday from 9.00 am until 3.00 pm, commencing on the first Saturday after these orders.

(b) From 1 October 2018 until 31 January 2019, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday, commencing on Saturday 6 October 2018.

(i) During school terms, each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday, commencing on the first Friday of each school term.

(ii) Subject to the father giving the mother not less than 60 days’ notice in writing, for a period of no more than 7 consecutive days in the Autumn, Winter, and Spring school holidays.

(iii) Subject to the father giving the mother not less than 60 days’ notice in writing, for a period of no more than 18 consecutive days in the Summer school holidays.

Orders 3 and 4 are suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years.

(b) Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

Pursuant to s 65Y of the Family Law Act, the parties are each granted permission to take the children outside Australia for the purpose of holidays, provided such holidays fall within the periods when the children would be ordinarily living or spending time with the parties.

For the purpose of implementing Orders 3-5:

(a) The father shall collect the children from the mother at the McDonalds Restaurant at B Town, NSW when they are due to begin spending time with him; and

(b) The mother shall collect the children from the father at the Suburb C Railway Station, NSW when they are due to return to her care.

The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:

(a) The father each Tuesday and Thursday at 6.30 pm, when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.

(b) The mother each Tuesday and Thursday at 6.30 pm, when the children are spending time with the father, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.

(c) The parent with whom they are not then staying on the children’s birthdays at 6.30 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10.

Each party is restrained from discussing any of the allegations made by or against them in these proceedings with any staff member employed, or with any parent of a child who attends, at any day-care centre, pre-school, or school at which either child is enrolled.

11.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children 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 children.

12.

Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

13.

Each party shall ensure the children regularly participate in each of the educational, sporting, cultural, and extra-curricular events in which the children are enrolled to participate.

14.

The mother shall forthwith notify the father in writing of:

(a) The name and contact details of the school the eldest child attends;

(b) The name and contact details of the day-care centre and/or pre-school the youngest child attends; and

(c) The name and contact details of the doctors, psychologists, counsellors, or any other medical providers the children have attended since April 2017

15.

The father is at liberty to attend the children’s day-care centres, pre-schools, and schools for events to which parents of students are ordinarily invited.

16.

The parties are at liberty to provide copies of these orders to:

(a) The principal of any day-care centre, pre-school, or school attended by the children; and

(b) Any Australian passport or immigration officer.

17.

Each party shall forthwith inform the other and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.

18.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

19.

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

20.

Costs are reserved for 28 days.

21.

Any and all other outstanding applications are dismissed.

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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