Zemmpler & Anor and Page & Anor - [2012] FamCA 689

FAMILY COURT OF AUSTRALIA

ZEMMPLER AND ANOR & PAGE AND ANOR

[2012] FamCA 689

FAMILY LAW – CHILDREN – With whom a child lives, with whom a child spends time - with whom a child communicates – Order that child live with non biological parents – order that non biological parents have sole parental responsibility for the child

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Zemmpler and Mr Ryall

RESPONDENTS:

Ms Page and Mr Tietzel

FILE NUMBER:

HBC

215

2012

DATE DELIVERED:

24 July 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

24 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Starkey

SOLICITOR FOR THE APPLICANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

In the proceedings of Ryall and Zemmpler I make the following orders:

Mr Zemmpler and Mr Ryall (“the applicants”) have equal shared parental responsibilty for K born … February 2008 (“the child”).
The child live with the applicants.
The applicants be permitted to sign all documents and do all acts to change the child’s surname.
The child spend time with the respondent mother and respondent father and biological siblings as agreed between the adults.
THE COURT NOTES
(a) The applicants will make available to the child, as he gets older, an independent and professional qualified person to assist in relation to his biological family.
(b)The applicants will have available photographs and maintain up to date photographs of the biological family and the child’s photograph album.
(c)The applicants will provide to the biological parents occasional photographs such a birthday or school photographs and inform them if the child suffers any serious ilness or injury.
(d)The applicants will, as far as practicable, organise face to face meetings between the child and his biological parents and siblings, as the applicants consider meet the best interests of the child.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zemmpler and Anor & Page and Anor 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 HOBART

FILE NUMBER: HBC 215 of 2012

Mr Zemmpler AND Mr Ryall

Applicants

And

Ms Page AND Mr Tietzel

Respondents

REASONS FOR JUDGMENT

Mr Zemmpler and Mr Ryall (“the applicant’s”) have made…

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: [2012] FamCA 689
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Zemmpler and Mr Ryall (the applicants) sought orders concerning the parenting of a child, K, born in February 2008. The respondents, Ms Page and Mr Tietzel, are K's biological parents and consented to the orders sought by the applicants. The dispute centred on with whom the child would live, who would have parental responsibility, and arrangements for contact with the biological parents.

The court was required to determine whether to make orders for K to live with the applicants, for the applicants to have sole parental responsibility, and for K to spend time with his biological parents. In doing so, the court had to consider the paramountcy of the child's best interests, as outlined in section 60B of the *Family Law Act 1975* (Cth), and the specific considerations set out in section 60CC of the Act, including the presumption of equal shared parental responsibility and the potential risks of harm to the child.

Justice Benjamin applied the principles of the *Family Law Act 1975* (Cth), noting that the applicants had been the primary attachment figures for K for most of his life, and that K did not have a meaningful relationship with his biological parents. The court found that while the applicants intended to facilitate contact with the biological family, there were concerns regarding the biological parents' history of violence and legal issues, which could pose a risk of emotional harm to the child. The court concluded that equal shared parental responsibility was not appropriate between the biological parents and the applicants, but was appropriate between the applicants themselves, given their commitment and capacity to provide a child-focused upbringing.

The court made orders granting the applicants equal shared parental responsibility for K, that K live with the applicants, and that the applicants be permitted to change K's surname. Orders were also made for K to spend time with his biological parents and siblings as agreed between the adults, with specific provisions for the applicants to facilitate ongoing knowledge of and safe contact with the biological family. The matter was then removed from the list of cases requiring determination.

Orders