Zane and Windsor - [2014] FCCA 1217

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANE & WINDSOR

[2014] FCCA 1217

Catchwords:
FAMILY LAW – Parental responsibility – supervised time – whether the father’s conduct and beliefs are a risk to the child – where a recommendation was made for a psychiatric report – where no psychiatric report made available – where the conduct and behaviour of the father gives the Court serious concerns.
PRACTICE & PROCEDURE – The Constitution – right to a jury trial – where no right exists in the Federal Circuit Court.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 65D, 61DA, 65DAA and 65DAB

Commonwealth Of Australia Constitution Act 1900 (Cth), ss.80 and 109

Federal Circuit Court Act 1999 (Cth), ss.11 and 53

Goode & Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713
MRR v GR [2010] HCA 4
Murphy & Murphy [2007] FamCA 795
R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MS ZANE

Respondent:

MR WINDSOR

File Number:

CRC 288 of 2011

Judgment of:

Judge Kemp

Hearing dates:

29 November 2013, 2 and 3 April 2014

Place of hearing:

Coffs Harbour

Date of Last Submission:

3 April 2014

Delivered at:

Sydney

Delivered on:

12 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr J Priestley

Solicitors for the Applicant:

Savage & Love

Counsel for the Respondent:

Ms Oliver and then Mr Windsor in person

Solicitors for the Respondent:

Michelle Harding Lawyer and then Mr Windsor in person

Counsel for the Independent Children’s Lawyer:

Mr Theobald

Solicitors for the Independent Children’s Lawyer:

Flintoff Lawyers

THE COURT ORDERS THAT:

The mother have sole parental responsibility for X born (omitted) 2008 (“the child”)
By consent, the child live with the mother.
The child spend time with the father as agreed in writing or failing such agreement, as follows:
(a)During the school term, every second weekend from after school on Friday until 5.30pm Sunday.
(b)By consent, during school term from after school until 5.30pm each Wednesday, with the father to return the child to McDonalds (omitted), unless otherwise agreed.
(c)By consent, during the second half of the summer school holidays and the first half of the remaining school holidays.
(d)By consent, from 4.00pm Christmas Eve until 5.00pm on Christmas Day in odd numbered years.
(e)By consent, from 4.00pm Christmas Day until 5.00pm on Boxing Day in even numbered years.
(f)By consent, from 4.00pm on the day before Father’s day until Father’s Day 5.00pm and that any provision that is inconsistent with this paragraph is suspended.
(g)By consent, any time the child by these orders is to spend with the father from 4.00pm on the day before Mother’s Day until 5.00pm Mother’s Day is suspended, with the intent that the child spend that time with the mother.
(h)By consent, on the child’s birthday at times agreed between the parents and failing agreement from 3.30pm to 5.30pm on a weekday. If the child’s birthday falls on a weekend, the child is to spend time on Saturday 9.00am to 3.00pm with the mother and on Sunday 9.00am…

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 Zane and Windsor

Details

AGLC: Zane and Windsor [2014] FCCA 1217
Case: [2014] FCCA 1217
Decision Date: 12 June 2014

CaseChat Overview and Summary

This matter concerned parenting orders made by consent between the mother and father regarding their child, X. The dispute centred on the arrangements for X's living situation, time spent with each parent, communication, and other related matters. The orders were made by Judge Kemp.

The court was required to determine the specific terms of the parenting orders, which encompassed issues such as sole parental responsibility, the child's primary residence, the schedule for the child spending time with the father, communication protocols, and conditions relating to drug use and supervision. The court also had to address provisions for school-related matters, changeovers, prohibitions against denigration, and access to medical information.

The court's reasoning was primarily based on the consent of the parties, as evidenced by the detailed orders made. These orders established a comprehensive framework for the child's care, reflecting an agreement between the parents on various aspects of their co-parenting relationship. Key principles applied included the best interests of the child, as implicitly considered through the agreed arrangements, and the court's power to make orders by consent under the *Family Law Act 1975*. The orders also included specific provisions for supervision of the child's time with the father, which were to cease when the child turned 14, and a prohibition against denigration of either parent.

The court made orders by consent, granting the mother sole parental responsibility for the child and ordering that the child live with the mother. The orders detailed specific arrangements for the child to spend time with the father, including provisions for contact, supervision, and holiday arrangements. The court also included standard clauses regarding communication, medical information, and prohibitions against denigration, and noted the father's consent to certain conditions regarding the mother's drug use. The matter was removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The mother have sole parental responsibility for X born (omitted) 2008 (“the child”)

By consent, the child live with the mother.

The child spend time with the father as agreed in writing or failing such agreement, as follows:

(a) During the school term, every second weekend from after school on Friday until 5.30pm Sunday.

(b) By consent, during school term from after school until 5.30pm each Wednesday, with the father to return the child to McDonalds (omitted), unless otherwise agreed.

(c) By consent, during the second half of the summer school holidays and the first half of the remaining school holidays.

(d) By consent, from 4.00pm Christmas Eve until 5.00pm on Christmas Day in odd numbered years.

(e) By consent, from 4.00pm Christmas Day until 5.00pm on Boxing Day in even numbered years.

(f) By consent, from 4.00pm on the day before Father’s day until Father’s Day 5.00pm and that any provision that is inconsistent with this paragraph is suspended.

(g) By consent, any time the child by these orders is to spend with the father from 4.00pm on the day before Mother’s Day until 5.00pm Mother’s Day is suspended, with the intent that the child spend that time with the mother.

(h) By consent, on the child’s birthday at times agreed between the parents and failing agreement from 3.30pm to 5.30pm on a weekday. If the child’s birthday falls on a weekend, the child is to spend time on Saturday 9.00am to 3.00pm with the mother and on Sunday 9.00am to 3.00pm with the father and that any provision that is inconsistent with this paragraph be suspended.

(i) By consent, the child spend time with the father on the father’s birthday from 3.30pm until 6.00pm and that any provision that is inconsistent with this paragraph be suspended.

(j) By consent, at each alternate Easter commencing 2015 from 9.00am Easter Saturday until 5.00pm Easter Sunday and that any provision that is inconsistent with this paragraph be suspended.

By consent, the father may contact the child by telephone at 6.00pm on Mondays and Thursdays while the child is not in his care and the mother is to provide a telephone number to the father where the child is contactable at the time.

By consent, the mother is not to use any illicit drugs while the child is in her care.

By consent, each parent is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

Unless otherwise agreed between the parties:

(a) The time the child spends with the father in accordance with orders 3 (a), (c), (d), (e), (f), (g) and (j) above are to occur under the supervision of the paternal grandmother, Ms R (“Ms R”), at Ms R’s home or by Ms L (“Ms L”) at Ms L’s home (or with some other person and at some other location as agreed to by the parties in writing), except for the hours between 9.00am and 3.00pm.

(b) Holiday time may be spent away from the home of Ms R or Ms L or of such other agreed supervisor, provided that Ms R or Ms L or such other agreed supervisor accompanies and supervises the child;

(c) In the event that Ms R or Ms L or such other agreed supervisor are unable to carry out the supervision required by these orders, then the father must so notify the mother in writing (including by text message) and the time with the father for which Ms R or Ms L or such other agreed supervisor cannot supervise, shall not take place.

(d) The father is to notify the mother of the address of Ms L’s home, if Ms L is to supervise the father’s time.

(e) All supervision pursuant to this order will cease on 4 September 2022, when the child turns 14 years of age.

That unless otherwise agreed between the parties, all changeovers shall take place at McDonalds, (omitted), NSW.

That neither party shall denigrate the other, nor the other’s family in the presence of or within the hearing of the child and each party shall remove the child from the presence of any third party who denigrates the other parent in the presence of or within the hearing of the child.

10.

Both parents shall have regard to the views of the child in the event that the child wishes to telephone the other parent and shall assist the child to do so, should she so wish.

11.

In the event of a medical procedure affecting the child, the parent with whom the child is spending time or living shall inform the other parent as soon as possible of that procedure, preferably in advance and both parents should be entitled to access to the child’s medical information.

12.

The matter be removed from the list of cases awaiting finalisation.

13.

Pursuant to s.65DA(2) 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 included in these orders.

THE COURT NOTES WITH THE CONSENT OF THE PARTIES THAT:

14.

The mother will actively consider agreeing to the time the child spends with the father in accordance order 3(a) being extended to before school the next day (Monday) from the beginning of term 3, 2014 and the mother will notify the father of her decision in writing within 7 days of the end of term 2, 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.