ZAVALA & ZAVALA - [2019] FCCA 338

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAVALA & ZAVALA

[2019] FCCA 338

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – family violence – consideration of equal time for child between parents.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC,61DA

Evidence Act 1995 (Cth)

Cases cited:

PST & CPR [2006] FMCA fam 36

M & M (1998) FLC 91-979

A & A (1998) FLC 92-800

Re: L (contact – domestic violence) (2000) 2 FLR 334

Napier & Hepburn (2006) FLC 93-303

Harridge & Anor & Harridge [2010] FamCA 445

Champness & Hanson (2009) FLC 93-407

Applicant:

MS ZAVALA

Respondent:

MR ZAVALA

File Number:

BRC 12551 of 2016

Judgment of:

Judge McGuire

Hearing dates:

26 & 27 November 2018

22 & 23 January 2019

Date of Last Submission:

23 January 2019

Delivered at:

Melbourne

Delivered on:

7 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Bunning

Solicitors for the Applicant:

Best Wilson Buckley Family Law

Counsel for the Respondent:

Mr Selfridge

Solicitors for the Respondent:

Rhodes Kildea Lawyers

ORDERS

That all extant Orders in respect of the child [X] born … 2013 (“the child”) be discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the father.
That the child spend time and communicate with the mother as follows:-
(a)Each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m. but such time to continue until the Monday at the commencement of school should the mother permanently relocate her residence to a point within 30 minutes of the child’s school;
(b)For one half of each gazetted New South Wales term school holiday as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;
(c)On a week about basis in the New South Wales gazetted summer school holidays as agreed between the parties but failing agreement then from the first Friday at 5.00 p.m. until the second Friday at 5.00 p.m. and in alternate weeks thereafter;
(d)By telephone or other media at any reasonable time;
(e)At such other times or variations of the above as agreed between the parties from time to time;
(f)In any event, the child spend time with the mother at Christmas in 2019 and each alternate year thereafter from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2020 and in each alternate year thereafter;
(g)In any event, the child spend time with the father in 2019 from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day and in each alternate year thereafter and in 2020 from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and each alternate year thereafter;
(h)That should Mother’s Day not fall on a weekend in which the child is otherwise with the mother pursuant to these orders then the child spend time with the mother from 5.00 p.m. Friday until 5.00…

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 ZAVALA & ZAVALA

Details

AGLC: Zavala and Zavala [2019] FCCA 338
Case: [2019] FCCA 338
Decision Date: 7 March 2019

CaseChat Overview and Summary

In the matter of ZAVALA & ZAVALA, Judge McGuire considered parenting orders concerning a child born in 2013. The dispute involved the arrangements for the child's time with each parent, with a central consideration being the risk of family violence and the potential for equal time arrangements.

The court was required to determine whether to discharge existing parenting orders and, if so, what new orders should be made regarding parental responsibility, the child's living arrangements, and the time the child would spend with each parent. A key issue was how to balance the principle of equal shared parental responsibility with the need to protect the child from any unacceptable risk, particularly in the context of family violence.

Judge McGuire reasoned that the existing orders were no longer appropriate and discharged them. The court then made orders for equal shared parental responsibility, with the child to live with the father. Specific provisions were made for the child to spend time and communicate with the mother, including weekend time, school holiday arrangements, and communication by telephone or other media. The court also imposed a restraint on both parents from denigrating the other parent in the presence of the child.

Orders

Orders of the court

That all extant Orders in respect of the child [X] born … 2013 (“the child”) be discharged.

That the parents have equal shared parental responsibility for the child.

That the child live with the father.

That the child spend time and communicate with the mother as follows:-

(a) Each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m. but such time to continue until the Monday at the commencement of school should the mother permanently relocate her residence to a point within 30 minutes of the child’s school;

(b) For one half of each gazetted New South Wales term school holiday as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;

(c) On a week about basis in the New South Wales gazetted summer school holidays as agreed between the parties but failing agreement then from the first Friday at 5.00 p.m. until the second Friday at 5.00 p.m. and in alternate weeks thereafter;

(d) By telephone or other media at any reasonable time;

(e) At such other times or variations of the above as agreed between the parties from time to time;

(f) In any event, the child spend time with the mother at Christmas in 2019 and each alternate year thereafter from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2020 and in each alternate year thereafter;

(g) In any event, the child spend time with the father in 2019 from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day and in each alternate year thereafter and in 2020 from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and each alternate year thereafter;

(h) That should Mother’s Day not fall on a weekend in which the child is otherwise with the mother pursuant to these orders then the child spend time with the mother from 5.00 p.m. Friday until 5.00 p.m. Sunday on the Mother’s Day weekend and the father’s time with the child be suspended accordingly but should the child be with the mother pursuant to the above orders on the Father’s Day weekend then the child’s time with the mother be suspended on that weekend; and

(i) That weekend time for the child with the mother be suspended during all gazetted school holidays.

That each of the parents be and is hereby restrained from denigrating the other parent to or in the presence of the child or permitting any other person to denigrate the other parent to or in the presence of the child.

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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