Yarwood and Klein - [2017] FCCA 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARWOOD & KLEIN

[2017] FCCA 2021

Catchwords:
FAMILY LAW – Parenting – young child – no time with father for most of child’s life – mother resistant to child spending any time with father – mother primary carer – whether child should spend any time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Cases cited:

A & A (1998) FLC 92-800
Banks & Banks [2015] FamCAFC 36
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
M & M (1988) 166 CLR 69
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115

Applicant:

MR YARWOOD

Respondent:

MS KLEIN

File Number:

PAC 2014 of 2014

Judgment of:

Judge Obradovic

Hearing dates:

16 June 2016, 9 September 2016, 20 – 21 March 2017

Date of Last Submission:

21 March 2017

Delivered at:

Parramatta

Delivered on:

29 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

Farah Lawyers, Solicitors and Barristers

Counsel for the Respondent:

Ms Mahony

Solicitors for the Respondent:

Louise Coady Family Lawyer

Independent Children’s Lawyer:

Mr Nasti

ORDERS

The child X born (omitted) 2013 shall live with the mother.
The mother shall have sole parental responsibility for the child.
The child shall spend time with the father as follows:
(a)Commencing on Saturday, 2 September 2017 and for a period of three months, each Saturday from 10am to 1pm, with such time to occur at a public place known to the child;
(b)Thereafter, for a further period of 4 months, each Saturday from 10am to 4pm;
(c)Thereafter, for a further period of 6 months, each alternate Saturday and Sunday from 10am to 4pm;
(d)Thereafter, for a further period of 6 months, each alternate weekend from 10am Saturday to 6pm on Sunday;
(e)Thereafter, each alternate weekend from after school on Friday to 6pm on Sunday.
On the expiration of time in order 3(d) the child shall spend half of each school holiday period with the father, such periods being the first half in even numbered years and the second half in odd numbered years.
The time spent in order 3(e) be suspended during school holidays.
The time spent with the father be shall be suspended in the event such time falls on Mother’s Day.
Notwithstanding any other order and commencing in 2018, the child shall spend time with the father on Father’s Day and on the child’s birthday as agreed between the parents, and failing agreement from 3pm to 7pm.
Except where the child’s school is an appropriate venue, changeover shall occur at a public place to be agreed between the parties and in the absence of agreement at (omitted) Police Station. The mother shall be responsible for delivering the child to the agreed location at the commencement of time and the father shall be responsible for returning the child to that location at the conclusion of time.
Each of Mr Yarwood and Ms Klein and…

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 Yarwood and Klein

Details

AGLC: Yarwood and Klein [2017] FCCA 2021
Case: [2017] FCCA 2021
Decision Date: 29 August 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Yarwood and Ms Klein regarding their child, X. The court was required to make orders concerning the child's living arrangements, parental responsibility, and time spent with each parent. Additionally, the court considered orders to prevent the child from leaving the Commonwealth of Australia.

The primary legal issues before the court were the determination of the child's residence, the allocation of parental responsibility, and the establishment of a schedule for the child to spend time with the father. The court also had to address the critical issue of international child abduction by considering and making orders to restrain the child from leaving Australia.

The court ordered that the child, X, shall live with the mother and that the mother shall have sole parental responsibility. A detailed, phased schedule was set out for the child to spend time with the father, commencing with supervised, short periods and gradually increasing in duration and independence over time. The court also made orders for the child to spend half of each school holiday period with the father, with specific arrangements for even and odd-numbered years. Crucially, the court issued orders restraining both parents and the child from removing the child from the Commonwealth of Australia, directing the Australian Federal Police to place the child on a Watch List. Further orders mandated the mother to provide the father with access to the child's school and medical reports.

Orders

Orders of the court

The child X born (omitted) 2013 shall live with the mother.

The mother shall have sole parental responsibility for the child.

The child shall spend time with the father as follows:

(a) Commencing on Saturday, 2 September 2017 and for a period of three months, each Saturday from 10am to 1pm, with such time to occur at a public place known to the child;

(b) Thereafter, for a further period of 4 months, each Saturday from 10am to 4pm;

(d) Thereafter, for a further period of 6 months, each alternate weekend from 10am Saturday to 6pm on Sunday;

(e) Thereafter, each alternate weekend from after school on Friday to 6pm on Sunday.

On the expiration of time in order 3(d) the child shall spend half of each school holiday period with the father, such periods being the first half in even numbered years and the second half in odd numbered years.

The time spent in order 3(e) be suspended during school holidays.

The time spent with the father be shall be suspended in the event such time falls on Mother’s Day.

Notwithstanding any other order and commencing in 2018, the child shall spend time with the father on Father’s Day and on the child’s birthday as agreed between the parents, and failing agreement from 3pm to 7pm.

Except where the child’s school is an appropriate venue, changeover shall occur at a public place to be agreed between the parties and in the absence of agreement at (omitted) Police Station. The mother shall be responsible for delivering the child to the agreed location at the commencement of time and the father shall be responsible for returning the child to that location at the conclusion of time.

Each of Mr Yarwood and Ms Klein and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2013 from the Commonwealth of Australia.

10.

X born (omitted) 2013 be and is hereby restrained from leaving the Commonwealth of Australia.

11.

It is requested that the Australian Federal Police give effect to the preceding order by placing X born (omitted) 2013 on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List.

12.

Upon expiration of the period referred to in Order 11 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List until the child turns 18.

13.

The mother shall within 28 days provide all necessary authorities and information to the father such as to enable him to obtain copies of the child’s school reports and any medical reports in relation to the child.

14.

The mother shall within 28 days provide all written authorities and directions necessary to the child’s educational, medical and dental providers to provide to the father with all documents and information in relation to the child.

15.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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