WEMPLE & DAUTRY - [2013] FCCA 2376

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEMPLE & DAUTRY

[2013] FCCA 2376

Catchwords:
FAMILY LAW – Interim parenting orders for near school age child – varying levels of difficulty in parenting relationship – difficulties in interim proceedings where there is conflicting evidence between the parties – further issue of which school child should attend in circumstances where the Father says he cannot afford to pay school fees of the magnitude sought by the Mother and where she is already in debt for pre-school fees from a pre-school.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(b), (c), (ca), (d), (e), (f), (g), (i) & (j), 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
MRR v GR (2010) 240 CLR 461
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439
Vasser v Taylor-Black (2008) 37 Fam LR 256

Applicant:

MR WEMPLE

Respondent:

MS DAUTRY

File Number:

CAC 1472 of 2013

Judgment of:

Judge Neville

Hearing date:

10 December 2013

Date of Last Submission:

13 December 2013

Delivered at:

Canberra

Delivered on:

20 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr S Gill

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Mr T Hodgson

Solicitors for the Respondent:

n/a

ORDERS

On an interim basis, the Court orders that:

The parties shall have equal shared parental responsibility for the child [X] (born [in] 2008) (“the child”).
The child shall spend time with the Father as follows:
(a)Each alternate weekend from after school on Friday until before school on Monday; and
(b)One overnight in the off-week (absent agreement), that night shall be on Thursday, from after school to before school Friday.
In the absence of written agreement this regime shall apply through the school holidays.
Whenever the child is in the care of her Father she should be able to telephone her Mother at any reasonable time

SCHOOLING

On a final basis, the Court orders that:

The child shall attend [S] Primary School in [omitted] commencing in Kindergarten in 2014.

IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT CANBERRA

CAC 1472 of 2013

MR WEMPLE

Applicant

And

MS DAUTRY

Respondent

REASONS FOR JUDGMENT

Introduction

On 20^th December 2013, in order to give a degree of certainty to the parties at the earliest possible time, and because of the nature of one of the issues in particular that required determination, I delivered abbreviated oral reasons in the midst of the usual end-of-year crush of urgent applications and the like. Indeed, the matter was heard in the course of the last duty week of the year because 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.

Continue reading WEMPLE & DAUTRY

Details

AGLC: WEMPLE & DAUTRY [2013] FCCA 2376
Case: [2013] FCCA 2376
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the matter of *Wemple & Dautry*, heard before Judge Neville, the dispute concerned interim parenting orders for a child nearing school age. The proceedings were marked by significant difficulties in the parenting relationship and conflicting evidence between the parties. A further issue before the Court was the determination of which school the child should attend, given the Father's assertion that he could not afford the school fees proposed by the Mother, who was already indebted for pre-school fees.

The Court was required to determine several legal issues. Firstly, it needed to establish the appropriate interim parenting arrangements, including the allocation of parental responsibility and the child's time with each parent. Secondly, the Court had to decide on the final schooling arrangements for the child, considering the financial circumstances of the parties and the child's best interests.

Applying the principles of the *Family Law Act 1975* (Cth), the Court made interim orders for equal shared parental responsibility. The child was to spend alternate weekends with the Father, from Friday after school until Monday before school, and one overnight in the off-week, specifically on Thursdays from after school to before school Friday. These arrangements were to apply to school holidays in the absence of written agreement, and the child was to be permitted to telephone the Mother at reasonable times when in the Father's care. On a final basis, the Court ordered that the child attend [S] Primary School commencing in Kindergarten in 2014.

Orders

Orders of the court

On an interim basis, the Court orders that:

1. The parties shall have equal shared parental responsibility for the child [X] (born [in] 2008) (“the child”).

2. The child shall spend time with the Father as follows:

(a) Each alternate weekend from after school on Friday until before school on Monday; and

(b) One overnight in the off-week (absent agreement), that night shall be on Thursday, from after school to before school Friday.

3. In the absence of written agreement this regime shall apply through the school holidays.

4. Whenever the child is in the care of her Father she should be able to telephone her Mother at any reasonable time

SCHOOLING

On a final basis, the Court orders that:

5. The child shall attend [S] Primary School in [omitted] commencing in Kindergarten in 2014.

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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