York & Anor & Werber - [2012] FMCAfam 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YORK & ANOR & WERBER

[2012] FMCAfam 7

FAMILY LAW – Parenting – parental responsibility – spend time with arrangements – whether siblings should live together with father or remain separated – virtual communication.

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DA, 65DAA, 68B

Barnett v Barnett (1973) 2 ALR 19
Garvey & Eccles [2008] FMCAfam 1218
H & H (1994) 19 Fam LR 165
In the Marriage of Hayman (1976) 2 Fam LR 11, 558; 14 ALR 216
In the Marriage of Mathieson (1977) FLC 90-230; (1980) 6 Fam LR 116
Lindell v Ranteri [2010] FamCA 52
McCall & Clark [2009] FamCAFC 92

First Applicant:

MR YORK

Second Applicant:

MS YORK

Respondent:

MS WERBER

File Number:

SYC 152 of 2010

Judgment of:

Monahan FM

Hearing dates:

8 and 9 December 2011

Date of Last Submission:

9 December 2011

Delivered at:

Sydney

Delivered on:

19 January 2012

REPRESENTATION

Counsel for the First and Second Applicants:

Mr Blackah

Solicitors for the First and Second Applicants:

Derham Houston Lawyers

Counsel for the Respondent:

Ms Barnett

Solicitors for the Respondent:

David H Cohen & Co

Counsel for the Independent Children’s Lawyer:

Ms Karagiannis

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW - Gosford

ORDERS

MR YORK (“the father”) and MS WERBER (“the mother”) have equal shared parental responsibility for the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2000 (“[Y]”) (or collectively “the children”).
The children live with the father.
The children spend time with the mother as agreed, or failing agreement, as follows:
(a)for one half of the Easter school holidays in each year, as follows:
(i)in odd-numbered years, the second half; and
(ii)in even-numbered years, the first half;
(b)for two (2) out of three (3) weeks of the June/July school holidays in each year, as follows:
(i)in odd-numbered years, the second two (2) weeks; and
(ii)in even-numbered years, the first two (2) weeks;
(c)for half of the September/October school holidays in each year, as follows:
(i)in odd-numbered years, the second half; and
(ii)in even-numbered years, the first half;
(d)in the long summer school holidays in each year, as follows:
(i)in long summer school holidays commencing in odd-numbered years, the first four (4) weeks; and
(ii)in long summer school holidays commencing in even-numbered years, the final four (4) weeks.
The parties be restrained from hitting or otherwise physically disciplining the children at any time and are to use their best endeavours to ensure that no other person physically disciplines the children.
The parties be restrained from denigrating, criticising, or permitting any third party to denigrate or criticise:
(i)the other party;
(ii)any partner of the other party; or
(iii)any family member of the other party
in the presence or hearing of the either or both of the children.
In the event that the parties are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.
With the exception…

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 York & Anor & Werber

Details

AGLC: York & Anor & Werber [2012] FMCAfam 7
Case: [2012] FMCAfam 7
Decision Date: 19 January 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of York & Anor v Werber involved a dispute between the father, Mr York, and the mother, Ms Werber, regarding the shared parental responsibility and living arrangements for their two children. The legal issues centred on establishing the terms of their shared parental responsibility, determining the children's living arrangements, and outlining the specific visitation schedule for the mother. Additionally, the court had to address restraining orders to prevent physical discipline and derogatory comments in the presence of the children. The dispute also encompassed the necessity of family dispute resolution for unresolved long-term care, welfare, and development issues.

The court meticulously considered the welfare and best interests of the children as the paramount concern. It evaluated the parents' capabilities to provide a stable and nurturing environment, as well as their willingness to cooperate in the children's upbringing. The court deliberated on the proposed visitation schedule, aiming to ensure a balanced and fair arrangement that would allow the children to maintain meaningful relationships with both parents. Furthermore, the court emphasised the importance of protecting the children from exposure to physical discipline and negative commentary about either parent, recognising the potential psychological impact on the children.

The court determined that both parents would share equal parental responsibility for the children. It ruled that the children would reside with the father while the mother would have specified visitation rights during school holidays, alternating the weeks and halves of the holidays annually. Additionally, the court issued restraining orders prohibiting physical discipline and derogatory comments in the presence of the children. It mandated family dispute resolution for any unresolved long-term care issues. The court maintained most interim orders from a previous ruling but made specific adjustments to the visitation schedule and other ancillary matters. The court noted that these orders would remain in effect until a final decision was made.

The court's final orders included detailed provisions for the children's living arrangements and visitation schedule, along with explicit restraining orders to safeguard the children from physical discipline and negative commentary. The remaining interim orders from a prior ruling were upheld with specific modifications. The case was adjourned to allow for further consideration of discharging certain interim orders and to finalise other ancillary matters.

Orders

Orders of the court

MR YORK (“the father”) and MS WERBER (“the mother”) have equal shared parental responsibility for the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2000 (“[Y]”) (or collectively “the children”).

The children live with the father.

The children spend time with the mother as agreed, or failing agreement, as follows:

(a) for one half of the Easter school holidays in each year, as follows:

(i) in odd-numbered years, the second half; and

(ii) in even-numbered years, the first half;

(b) for two (2) out of three (3) weeks of the June/July school holidays in each year, as follows:

(i) in odd-numbered years, the second two (2) weeks; and

(ii) in even-numbered years, the first two (2) weeks;

(i) in odd-numbered years, the second half; and

(ii) in even-numbered years, the first half;

(d) in the long summer school holidays in each year, as follows:

(i) in long summer school holidays commencing in odd-numbered years, the first four (4) weeks; and

(ii) in long summer school holidays commencing in even-numbered years, the final four (4) weeks.

The parties be restrained from hitting or otherwise physically disciplining the children at any time and are to use their best endeavours to ensure that no other person physically disciplines the children.

The parties be restrained from denigrating, criticising, or permitting any third party to denigrate or criticise:

(i) the other party;

(ii) any partner of the other party; or

(iii) any family member of the other party

in the presence or hearing of the either or both of the children.

In the event that the parties are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.

With the exception of paragraphs one (1), two (2), four (4) to 10 (inclusive) and 23 to 27 (inclusive), the interim Orders contained within the Minute attached to the Orders made by this Court on 8 December 2010 (“the ancillary matters”) remain in full force and effect.

All extant applications be adjourned to a date and time to be fixed to consider discharging paragraph seven (7) herein and making final Orders in respect of the ancillary matters.

AND THE COURT NOTES THAT:

(A) The school holiday periods referred to in these orders are the NSW gazetted school holiday periods.

(B) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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