ZEBIC & BARRON - [2015] FCCA 3613

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZEBIC & BARRON

[2015] FCCA 3613

Catchwords:
FAMILY LAW – Children – Parenting Orders – parental responsibility – equal shared parental responsibility – best interests of the children – alcohol consumption – whether father should be restrained from consuming alcohol for 12 hours prior to spending time with the children until youngest child attains the age of 12 years – children aged 11, 10 and 5 years – whether injunction sought is too wide in its effect.

COSTS – Where respondent seeks order for costs of contravention proceedings that were settled by consent orders made on 12 November 2013 – no order for costs.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
M v M (1988) 166 CLR 69
MRR & GR (2010) 240 CLR 461
Napier & Hepburn (2006) 36 Fam LR 395: FLC 93-303; [2006] FamCA 1316
Potter & Potter (2007) FLC 93-326; [2007] FamCA 350

Applicant:

MS ZEBIC

Respondent:

MR BARRON

File Number:

NCC 2955 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

17 October & 5 December 2014

Date of Last Submission:

24 December 2014

Delivered at:

Sydney

Delivered on:

30 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Paula Tyrie Law Practice

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Flintoff Lawyers

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2003, Y born (omitted) 2004 and Z born (omitted) 2010.
The Mother and the Father are to have sole parental responsibility for making decisions about day to day issues concerning the care, welfare and development of the children X, Y and Z when the children are in their respective care under these Orders.
The children X, Y and Z are to live with the Mother.
The Father is restrained from consuming alcohol at any time when all or any of the children X, Y and Z are in his care for a period of twelve (12) months from the date of these Orders.
The children X, Y and Z are to spend time with the Father at such times as the parties may agree but in default of agreement as follows:
(a)during school term time:
(i)from immediately after school or pre-school as the case may be on Friday to the commencement of school or pre-school on Monday morning PROVIDED THAT if the Monday following the weekend is a public holiday then until the commencement of school on the Tuesday morning; and
(ii)in the off week from immediately after school or pre-school as the case may be on Wednesday until the commencement of school or pre-school as the case may be on Thursday.
(b)for half of the Autumn, Winter and Spring school holiday periods in each year at such times…

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 ZEBIC & BARRON

Details

AGLC: ZEBIC & BARRON [2015] FCCA 3613
Case: [2015] FCCA 3613
Decision Date: 30 June 2015

CaseChat Overview and Summary

This matter concerned parenting orders for three children, X, Y, and Z, before Judge Scarlett. The dispute involved the mother and father's parental responsibility and the specific arrangements for the children's time with each parent, including a contentious issue regarding the father's alcohol consumption.

The court was required to determine the extent of parental responsibility to be afforded to each parent, whether equal shared parental responsibility was appropriate, and how the children's best interests would be served in light of the circumstances. A key issue was whether the father should be restrained from consuming alcohol for a period of 12 hours prior to spending time with the children until the youngest child attained the age of 12 years, and if such an injunction was too wide in its effect. The court also considered an application for costs related to settled contravention proceedings.

In its reasoning, the court discharged all earlier parenting orders and made new orders establishing equal shared parental responsibility for the children. The children were ordered to live with the mother, with each parent having sole responsibility for day-to-day decisions when the children were in their respective care. Crucially, the father was restrained from consuming alcohol for 12 months when the children were in his care, a measure deemed necessary for the children's welfare. Detailed provisions were then set out for the father's time with the children, including specific arrangements for school terms, holidays, birthdays, and public holidays, as well as communication protocols.

The court dismissed the respondent father's application for costs of the contravention proceedings. Provisions were made for any future applications for costs in the present proceedings, requiring affidavits and submissions to be filed within specified timeframes.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children X born (omitted) 2003, Y born (omitted) 2004 and Z born (omitted) 2010.

The Mother and the Father are to have sole parental responsibility for making decisions about day to day issues concerning the care, welfare and development of the children X, Y and Z when the children are in their respective care under these Orders.

The children X, Y and Z are to live with the Mother.

The Father is restrained from consuming alcohol at any time when all or any of the children X, Y and Z are in his care for a period of twelve (12) months from the date of these Orders.

The children X, Y and Z are to spend time with the Father at such times as the parties may agree but in default of agreement as follows:

(a) during school term time:

(i) from immediately after school or pre-school as the case may be on Friday to the commencement of school or pre-school on Monday morning PROVIDED THAT if the Monday following the weekend is a public holiday then until the commencement of school on the Tuesday morning; and

(ii) in the off week from immediately after school or pre-school as the case may be on Wednesday until the commencement of school or pre-school as the case may be on Thursday.

(b) for half of the Autumn, Winter and Spring school holiday periods in each year at such times as the parties may agree but in default of agreement as follows:

(i) for the first half of the school holiday period in 2015 and all odd-numbered years thereafter commencing immediately after the last day of the school term and concluding at 10:00 am on the second Saturday of the school holiday period;

(ii) for the second half of the school holiday period in 2016 and all even-numbered years thereafter commencing at 10:00 am on the second Saturday of the school holiday period and concluding at 5:00 on the last Saturday of the school holiday period;

(d) From 9:00 am on Father’s Day to the commencement of school or pre-school as the case may be on Monday.

(e) On each of the children’s birthdays the parent who does not already have the children in her care will spend time with the children from immediately after school until 7:30pm if the birthday falls on a school day or from 9:00am to 1:00pm if the birthday falls on a day when the children are not required to attend school.

The Father’s time with the children set out in the immediately preceding Order will be suspended each year:

(a) From 12:00 noon on Christmas eve until 1:00pm on Boxing Day and the children will spend time with their parents as follows:

(i) In 2015 and all odd-numbered years thereafter from 12:00 noon on Christmas Eve to 1:00pm on Christmas Day with the mother and from 1:00pm on Christmas Day until 1:00pm on Boxing Day with the mother; and

(ii) In 2016 and all even-numbered years thereafter from 12:00 noon on Christmas Eve until 1:00pm on Christmas Day with the father and from 1:00pm on Christmas Day until 1:00pm on Boxing Day with the mother; and

(b) From 10:00am on Good Friday until 6:00pm on Easter Monday and the children will spend time with their parents as follows:

(i) In 2016 and all even-numbered years thereafter from 10:00am on Good Friday until 6:00pm on Easter Monday with the mother; and

(ii) In 2017 and all odd-numbered years thereafter from 10:00am on Good Friday until 6:00pm on Easter Monday with the father.

If the children are spending time with the Father on Mother’s Day then the time will be suspended and the children will spend time with the Mother from 9:00am on Mother’s Day until the commencement of school the following day.

Changeover where the children go from the care of one party to the care of the other in accordance with these Orders will take place in the following way:

(a) On a day when the children are not required to attend school the mother is to deliver the children to the Father’s residence at the commencement of the time and the Father will return the children to the Mother’s residence at the conclusion of the time; and

(b) On a school day the parent with whom the children are due to spend time is to collect the children from school or pre-school as the case may be at the commencement of the time and return the children to school or pre-school at the conclusion of the time.

10.

The Father may communicate with the children by telephone between the hours of 6:00 pm and 6:30 pm each Tuesday, Thursday and Sunday for which purpose the father is to initiate the call to the Mother’s mobile telephone and the Mother is to ensure that the children are available to receive the telephone call.

11.

The parties must ensure that the children remain enrolled in the (omitted) Public School until they conclude their primary education unless the parties otherwise agree in writing that one or more of the children is or are to attend a different primary school.

12.

The parties must to do all things necessary is enrolled to attend the (omitted) Public School to commence Kindergarten at the commencement of the first school term in 2016.

13.

The Application by the Respondent for an order that the Applicant pay the costs of the contravention application filed on 8 July 2013 is dismissed.

14.

If either party seeks an order that the other party pay the costs of this proceedings that party must file and serve an affidavit setting out the amount of costs sought and the manner in which those costs are calculated within twenty-eight (28) days from the date of these Orders.

15.

Any submission in opposition to an order for costs must be filed and served within a further period of fourteen (14) days.

16.

Any application for costs will be considered in chambers upon the filing of the affidavit and submissions referred to in the immediately preceding 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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