Zarins and Mylne (No. 5) - [2013] FamCA 1008

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE (NO. 5)

[2013] FamCA 1008

FAMILY LAW – CHILDREN – Interim Orders – with whom a child lives – with whom a child spends time – best interests – consideration of updated family report – orders made for the child to live with the father and spend time with the mother as specified pending the final hearing of the matter.

Family Law Act 1975 (Cth) s 60CA; 60CC; 64B

Hall & Hall (1979) FLC 90-713
Goode v Goode (2006) 36 Fam LR 422

APPLICANT:

Ms Zarins

RESPONDENT:

Mr Mylne

INDEPENDENT CHILDREN’S LAWYER:

Mr Kent, Legal Services Commission of South Australia

FILE NUMBER:

ADC

4802

2008

DATE DELIVERED:

19 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nelson QC

SOLICITOR FOR THE APPLICANT:

Belchamber Legal

COUNSEL FOR THE RESPONDENT:

n/a

SOLICITOR FOR THE RESPONDENT:

Unrepresented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kent, Legal Services Commission of South Australia

Orders

That paragraphs 2 of the orders made 3 October 2013 be discharged.
That B born … 2007 (“the child”) live with the father.
That the child shall spend time with the mother as follows:-
(a)       From 3pm Wednesday 25 December 2013 until 6pm Wednesday 1 January 2013;
(b)       From 6pm Wednesday 8 January 2014 until 6pm Wednesday 15 January    2014;
(c)       From 6pm Friday 24 January 2014 until 6pm Monday 27 January 2014;
(d)       From the conclusion of school on Monday 3 February 2014 until the          commencement of school on Tuesday 4 February 2014 with such an     arrangement to continue in each alternate weekend thereafter, with time       to commence at 9am on the Monday if a given Monday is not a school           day and to conclude at 6pm on the Tuesday if a given Tuesday is not a        school day; and
(e)       From the conclusion of school on Friday 7 February 2014 until the commencement of school Monday 10 January 2014 with such an arrangement to continue in each alternate weekend thereafter, with time            to commence at 6pm on the Friday if a given Friday is not a school day            and to conclude at 10am on the Monday if a given Monday is not a school day.
That paragraphs 3 and 4 of the orders made 3 October 2013 do continue.
That further consideration of the matter be adjourned to 9am on Wednesday 5 February 2014 (1 hour allowed) with liberty to vacate upon jointly signed letter being forwarded to … not less than 48 hours prior to the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

REASONS FOR JUDGMENT

Introduction

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

Case: [2013] FamCA 1008
Decision Date: 19 December 2013

CaseChat Overview and Summary

In *Zarins and Mylne (No. 5)*, Berman J of the Family Court of Australia considered an application concerning the living arrangements and time spent with a child, B, born in 2007. The proceedings involved the father and the mother, with the court making orders that varied previous arrangements.

The central legal issue before the court was to determine the primary residence of the child and to establish a schedule for the child to spend time with the non-resident parent. This involved assessing the best interests of the child in light of the circumstances presented.

Berman J ordered that the child, B, live with the father. The court then detailed a specific schedule for the child to spend time with the mother, commencing on 25 December 2013 and extending through various dates and alternating weekends into February 2014, with specific times for commencement and conclusion of these periods. Certain previous orders were discharged, while others were continued. The matter was adjourned for further consideration on 5 February 2014.

Orders

Orders of the court

That paragraphs 2 of the orders made 3 October 2013 be discharged.

That B born … 2007 (“the child”) live with the father.

That the child shall spend time with the mother as follows:-

(a) From 3pm Wednesday 25 December 2013 until 6pm Wednesday 1 January 2013;

(b) From 6pm Wednesday 8 January 2014 until 6pm Wednesday 15 January 2014;

(d) From the conclusion of school on Monday 3 February 2014 until the commencement of school on Tuesday 4 February 2014 with such an arrangement to continue in each alternate weekend thereafter, with time to commence at 9am on the Monday if a given Monday is not a school day and to conclude at 6pm on the Tuesday if a given Tuesday is not a school day; and

(e) From the conclusion of school on Friday 7 February 2014 until the commencement of school Monday 10 January 2014 with such an arrangement to continue in each alternate weekend thereafter, with time to commence at 6pm on the Friday if a given Friday is not a school day and to conclude at 10am on the Monday if a given Monday is not a school day.

That paragraphs 3 and 4 of the orders made 3 October 2013 do continue.

That further consideration of the matter be adjourned to 9am on Wednesday 5 February 2014 (1 hour allowed) with liberty to vacate upon jointly signed letter being forwarded to … not less than 48 hours prior to the hearing.

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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