WEMPEL & NISBETT - [2012] FMCAfam 1406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEMPEL & NISBETT

[2012] FMCAfam 1406

FAMILY LAW – Children – parenting – orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility.

PRACTICE AND PROCEDURE – Descriptions of parties – Applicant to be referred as “Applicant” – Respondent to be referred to as “Respondent” – use of informal descriptions of parties not be followed.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60H, 61DA, 61DB, 64B, 64C, 65DAA
Federal Magistrates Act 1999 (Cth), s.3
Federal Magistrates Court Rules 2001, r. 15.09

H v Minister for Immigration and Citizenship [2010] FCAFC 119
Lusito & Lusito [2011] FMCAfam 55
Maurice & Barry [2010] FamCA 687

Applicant:

MS WEMPEL

Respondent:

MS NISBETT

File Number:

SYC 1391 of 2012

Judgment of:

Scarlett FM

Hearing date:

16 August 2012

Date of Last Submission:

16 August 2012

Delivered at:

Sydney

Delivered on:

19 December 2012

REPRESENTATION

Solicitors for the Applicant:

Fielden and Associates

Counsel for the Respondent:

Ms Hausmann

Solicitors for the Respondent:

Kyle Family Lawyers

ORDERS

UNTIL FURTHER ORDER

The Applicant and the Respondent are to have equal shared parental responsibility for the child [X] born [in] 2009.
The child [X] is to live with each of the parties as follows:
(a)With the Applicant from 1:00 pm each Thursday until 10:00 am each Sunday; and
(b)With the Respondent from 10:00 am each Sunday until 1:00 pm each Thursday;
(c)EXCEPT THAT on any weekend that the Respondent is required to be away for work, changeover on the Sunday will be at a time to be notified by the Respondent not less than two (2) weeks prior to that weekend.
The child [X] will continue to attend the [K] Pre-School on Tuesday, Wednesday and Thursday in each week.
For the purpose of changeover between the parties, unless otherwise agreed:
(a)On Sunday mornings, the Respondent will collect [X] from the Applicant at [E] or, if it is raining, the [omitted] Café, [E]; and
(b)On Thursdays, the Applicant will collect [X] from pre-school between 1:00 pm and 3:30 pm, or at another place and time as agreed between the parties on non pre-school days.
The child [X] will spend time with each of the Applicant and the Respondent for special occasions as agreed, such time to include the following:
(a)Mother’s Day when the usual changeover time of 10:00 am is to extend to 12:00 noon; and
(b)Christmas 2012, when [X]’s time with the Applicant is to extend to include the period from 10:00 am on the Sunday before Christmas being 23 December 2012 until 11:00 am on Christmas Day 25 December and [X]’s usual time with the Respondent is to extend to include the period between 1:00 pm on the Thursday after Christmas being 27 December 2012 and 10:00 am on the Sunday after Christmas being 30 December 2012.
All other Applications for Interim Orders are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wempel & Nisbett is approved pursuant to s.121(9)(g)…

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: WEMPEL & NISBETT [2012] FMCAfam 1406
Case: [2012] FMCAfam 1406
Decision Date

CaseChat Overview and Summary

This is an application for interim parenting orders concerning the child [X], born [in] 2009, following the separation of the parties, who were in a same-sex relationship. The primary issues for the Court were whether the parties should have equal shared parental responsibility for [X], how [X] should spend time with each of the parties, and which school [X] should attend. The Court was required to consider the matters set out in ss.60CA and 60CC of the Family Law Act 1975 (Cth), in particular the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence. The Court also had to consider the presumption that it was in the best interests of the child for the child’s parents to have equal shared parental responsibility (s.61DA). The Court found that the parties should have equal shared parental responsibility for [X]. It found that the current arrangement for [X] to spend time with each of the parties was in his best interests, and dismissed the Applicant’s proposal to change the arrangements. It was not in [X]’s best interests to change pre-schools and the orders sought concerning which school [X] should attend were misconceived. The Court made orders that [X] should live with each of the parties as follows:(a)With the Applicant from 1:00 pm each Thursday until 10:00 am each Sunday; and(b)With the Respondent from 10:00 am each Sunday until 1:00 pm each Thursday;EXCEPT THAT on any weekend that the Respondent is required to be away for work, changeover on the Sunday will be at a time to be notified by the Respondent not less than two (2) weeks prior to that weekend.The child [X] will continue to attend the [K] Pre-School on Tuesday, Wednesday and Thursday in each week.

Orders