Bane and Bane (No 2) - [2011] FamCA 790

FAMILY COURT OF AUSTRALIA

BANE & BANE (NO 2)

[2011] FamCA 790

FAMILY LAW – CHILDREN – Various final orders made by consent – Determination of remaining issues relating to final parenting orders
FAMILY LAW – CHILDREN – Parental responsibility – Whether there should be an order for equal shared parental responsibility or for sole parental responsibility as in Carlson & Bowden (2008) 40 Fam LR 327
FAMILY LAW – CHILDREN – Equal time – Determination of the number of nights to be spent by the children with their father – Whether it should be a 5/9 or 7/7 parenting arrangement – Determination of the time to be spent by the children with their father during the 2011/2012 summer school holiday period
FAMILY LAW – CHILDREN – Family violence – Where the mother asserted family violence

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 61C, 61D(2), 61DA(4), 64B(1), 65AA, 65DAA, 65DAC, 65DAE

Carlson & Bowden (2008) 40 Fam LR 327
Cotton & Cotton (1983) FLC 91-330
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Bane

RESPONDENT:

Ms Bane

INDEPENDENT CHILDREN'S LAWYER:

Glezer Lanteri & Associates

FILE NUMBER:

MLC

312

2008

DATE DELIVERED:

13 October 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

6 & 7 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitchurch

SOLICITOR FOR THE APPLICANT:

Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Elleray

SOLICITOR FOR THE RESPONDENT:

Westminster Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Glezer Lanteri & Associates

ORDERS

IT IS ORDERED BY CONSENT:

That the children of the marriage M BANE born … May 2005 (“M”) and K BANE born … January 2007 (“K”) (collectively referred to as “the children”) live with the Mother at all times other than those set out hereunder and other than any additional time ordered by the this Honourable Court.
All school term dates and school holiday dates referred to in these orders shall be governed by the state school system in Victoria.
That regardless of whether either child is of school age and attending school, the Father spend time with the children during school term holidays as follows:
(a)during the year 2011, and in each odd-numbered year thereafter, from the conclusion of school in respect of M, and from the conclusion of day care, kindergarten or school in respect of K, on the last day of the school term until 4.00pm on the middle Saturday of the school term holidays; and
(b)during the year 2012, and in each even-numbered year thereafter, from 4.00pm on the middle Saturday of the school term holidays until 4pm on the Saturday immediately prior to the resumption of school.
That for the purposes of the long summer school holidays (commencing from the last day of the school term for the calendar year until the Sunday immediately prior to the resumption of school the following year), the Father spend time with the children as…

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 Bane and Bane (No 2)

Details

AGLC: Bane and Bane (No 2) [2011] FamCA 790
Case: [2011] FamCA 790
Decision Date: 13 October 2011

CaseChat Overview and Summary

This matter concerned orders made by consent between the Mother and Father regarding their two children, M and K. The dispute revolved around parenting arrangements, specifically the time the children would spend with each parent, parental responsibility, and related matters.

The court was required to determine the specific terms of parenting orders, including the living arrangements for the children, the allocation of time between the parents during school terms, school holidays, and special occasions such as birthdays and Christmas. Further issues included the division of parental responsibility for long-term decisions, communication protocols between the parents, and arrangements for interstate and overseas travel. The court also had to consider the presumption of equal shared parental responsibility and whether it was rebutted in the best interests of the children.

Murphy J, by consent of the parties, made detailed orders addressing these issues. The court declared that the presumption of equal shared responsibility was rebutted, finding it not to be in the children's best interests. Consequently, the Mother was granted sole parental responsibility for all major long-term issues, with specific requirements for her to consult with the Father before making ultimate decisions. The orders meticulously outlined the Father's time with the children during school terms, holidays, and special occasions, including specific timings and alternating arrangements. Provisions were also made for communication, travel, and the involvement of the Independent Children's Lawyer.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

That the children of the marriage M BANE born … May 2005 (“M”) and K BANE born … January 2007 (“K”) (collectively referred to as “the children”) live with the Mother at all times other than those set out hereunder and other than any additional time ordered by the this Honourable Court.

All school term dates and school holiday dates referred to in these orders shall be governed by the state school system in Victoria.

That regardless of whether either child is of school age and attending school, the Father spend time with the children during school term holidays as follows:

(a) during the year 2011, and in each odd-numbered year thereafter, from the conclusion of school in respect of M, and from the conclusion of day care, kindergarten or school in respect of K, on the last day of the school term until 4.00pm on the middle Saturday of the school term holidays; and

(b) during the year 2012, and in each even-numbered year thereafter, from 4.00pm on the middle Saturday of the school term holidays until 4pm on the Saturday immediately prior to the resumption of school.

That for the purposes of the long summer school holidays (commencing from the last day of the school term for the calendar year until the Sunday immediately prior to the resumption of school the following year), the Father spend time with the children as follows:

(a) for the long summer school holidays commencing in 2012/2013, and for each even numbered year thereafter, for the second half of the long summer school holidays commencing at 4.00pm at the midway point of the holiday period until 4.00pm on the Sunday immediately prior to the resumption of school; and

(b) for the long summer school holidays commencing in 2013/2014, and for each odd numbered year thereafter, for the first half of the long summer school holidays commencing from the conclusion of school on the last day of the school term for that calendar year until 4.00pm at the midway point of the holiday period.

That for the purpose of birthdays for each child, the Father spend time with the children as follows:

(a) In respect of M, if the birthday falls in a time when the children would be spending time with the Mother, the Father spend time with both children upon M’s birthday from the conclusion of school until 5.30pm if M’s birthday falls upon a weekday and from 11.00am until 4.00pm if M’s birthday falls upon a weekend. In the event that M’s birthday falls upon a weekday, then the Father shall collect the children from school at the commencement of his time and he shall return the children to the Mother’s residence at the conclusion of this time; and

(b) In respect of K, the Father shall spend time with both children upon K’s birthday in 2013, and for each odd numbered year thereafter, commencing at 4.00pm on the day prior to K’s birthday until 4.00pm on K’s birthday.

That for the purpose of Christmas in 2012, and for each even numbered year thereafter, the Father spend time with the children from 4.00pm on 25 December until 4.00pm on 26 December.

If the Easter holiday weekend does not fall during school term holidays, then the Father spend time with the children from the conclusion of school on Easter Thursday (day prior to Good Friday) until 4.00pm on Easter Saturday in odd-numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in even-numbered years.

For the purpose of Father’s Day each year, if the children are scheduled to spend time with the Mother, then the Father shall spend time with the children from 4.00pm on the day prior to Father’s Day until the commencement of school the day following Father’s Day.

That any time under these orders between the Father and the children shall be suspended as follows:

(a) For the purpose of Christmas in 2013, and for each odd year thereafter, the Mother spend time with the children from 4.00pm on 25 December until 4.00pm on 26 December;

(b) For the purpose of birthdays for each child, the Mother spend time with the children as follows:

(i) In respect of M’s birthday, if this birthday falls on a day when the children would be spending time with the Father, then the Mother shall spend time with both children from the conclusion of school until 5.30pm if a weekday and from 11.00am until 4.00pm if this birthday falls on a weekend. In the event that M’s birthday falls upon a weekday, then the Mother shall collect the children from school at the commencement of her time and the Father shall collect the children from the Mother’s residence at 5.30pm;

(ii) In respect of K’s birthday, the Mother shall spend time with both children upon K’s birthday in 2014, and for each even numbered year thereafter, commencing at 4.00pm on the day prior to K’s birthday until 4.00pm on K’s birthday.

(c) If the Easter holiday weekend does not fall during school term holidays, then the Mother spend time with the children from the conclusion of school on Easter Thursday (day prior to Good Friday) until 4.00pm on Easter Saturday in even numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in odd numbered years.

(d) For the purpose of Mother’s Day each year, if the children are scheduled to spend time with the Father, then the Mother shall spend time with the children from 4.00pm on the day prior to Mother’s Day until the commencement of school the day following Mother’s Day.

10.

That all of the Father’s time pursuant to paragraph 24 hereafter ordered in respect of time during school terms be suspended during all school term holidays and long summer school holidays.

11.

For the purposes of the collection and the delivery of the children:

(a) during school terms, the Father or his nominee shall collect the children from school, kindergarten and/or day care at the commencement of his time with the children, and return them to their respective school, kindergarten and/or day care at the conclusion of his time. In the event that the children are not due to attend school, kindergarten and/or day care on a day the Father is due to collect the children, then the Father or his nominee shall collect the children from the P Contact Centre at 4.00pm if it is a day when the centre is open and return them in accordance with paragraph 9 herein;

(b) For the purpose of school term holidays, the long summer school holidays, Christmas and Easter, each party or their nominee shall collect the children at the commencement of their time from school, kindergarten, day care where applicable and if the changeover is due to take place on a non school day then both parties or their nominees are to utilise the P Contact Centre at the scheduled time;

(c) The P Community Centre is to be used for all other changeovers on non school days, if changeover cannot occur at the P Contact Centre due to it not being available, then the changeover shall take place at the Mother’s residence at the scheduled time;

(d) If the children are medically unfit to attend school, kindergarten and/or day care at the conclusion of the Father’s period, then the Father or his nominee shall return the children to the Mother’s residence before 10am at the conclusion of his period;

(e) For the purpose of Mother’s Day, if the children are spending time with the Father, then the Mother or her nominee shall collect the children from the P Community Centre at the commencement of her time;

(f) For the purpose of Father’s day, if the children are spending time with the Mother, then the Father or his nominee shall collect the children from the P Community Centre at the commencement of his time.

12.

That M remain at, and K be enrolled at, School 1 unless otherwise as may be agreed between the parties in writing or pursuant to Court Order.

13.

That the parties maintain a communication book in respect of the health of the children, their educational requirements and details of their routine and such book shall travel at all time with the children when moving between households.

14.

That each party advise the other through the communication book, or via email, of any extra curricular activities in which they wish the children to participate but neither party shall be responsible to contribute towards the costs of such activities organized by the other or be responsible for taking the children to those activities unless otherwise agreed.

15.

That each party shall at all times keep the other advised, via the communication book or email, of their residential address and telephone number and advise the other party no less than 7 days in advance of any change of those details.

16.

That each parent shall notify the other as soon as possible of any serious medical illness or injury affecting the children in their care as well as advise as soon as practicable the names of all the treating medical practitioners.

IT IS FURTHER ORDERED BY CONSENT:

17.

That both parties forthwith advise and keep the other advised as to:

(a) The name and address of any health professionals of the children or either of them attend by email or letter;

(b) Except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any initial medical appointments (as distinct from subsequent appointments) and the purpose of such initial appointments via email, letter or SMS text message; and

(c) Authorise and direct the children’s schools and any and all health professional to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time, and each party is at liberty to attend upon health professionals and parent teacher interviews at their own time and expense other than when the other is present.

18.

That the mother do all things necessary to authorise the father and to keep the father authorised to receive information at the expense of the father copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent and that the father be permitted to attend the children’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the children or either of them participate in.

19.

That the mother and father do all things and sign such documents as may be require to have the child M (and if necessary K) attend upon a school counsellor in order to receive counselling as may be recommended by such counsellor from time to time.

20.

That the mother and father together with their servants and agents be and are hereby restrained from:

(a) Denigrating the other to and in the hearing of the children or either of them or allowing another to engage in such conduct; and

(b) Discussing family law matters with the children, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them.

21.

That either child is permitted to travel interstate or overseas with each respective parent during their specific periods in which the children live or spend time with them. Each parent is to provide to the other parent not less than 28 days prior to any anticipated travel, copies of return airline flight tickets, a travel itinerary and address and contact details for the children for the duration of such travel. Each parent will facilitate the provision of the children’s passports to the other in the event that overseas travel is to be undertaken.

IT IS FURTHER ORDERED THAT:

22.

It is DECLARED that the presumption of equal shared responsibility is rebutted as the court is satisfied that it would not be in the best interest of the children for the Mother and Father to have equal shared parental responsibility for the children.

23.

That the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:

(a) Use her best endeavours to advise the father in writing of the decision intended to be made;

(b) Seek the father’s written response in relation thereto;

(c) Consider, by reference to the best interests of the child or children, any such response prior to making any such decision;

(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.

24.

That the father spend time and communicate with the children as follows during the school term:

(a) Each alternate week from after school Wednesday (or 3.30pm in the event that it is a non-attendance day for the respective child) until the commencement of school (or 9:00am in the event that it is a non-attendance day for the respective child) the following Monday or Tuesday if Monday is a non-school day;

(b) That for the purpose of (24)(a) above that until the child K attends school in 2012, the parent who is to provide the child K for changeover is to deliver her to M’s school wherein changeover is to occur with M and this is to be repeated at the conclusion of time;

With that time to commence in the sequence as has erstwhile been occurring pursuant to the previous orders between the parties.

25.

That the father spend time and communicate with the children during the 2011/2012 long summer school holidays for a continuous period of two weeks with such period to be agreed between the parties in writing, and failing agreement such period is to commence at 10.00am on 7 January 2012 and conclude at 4.00pm on 21 January 2012.

26.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

27.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

28.

The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

29.

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.

IT IS CERTIFIED:

30.

That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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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