Black and Clare - [2011] FMCAfam 477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLACK & CLARE

[2011] FMCAfam 477

FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – equal shared parental responsibility – substantial and significant time – two children aged three and nearly six – overnight time.

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

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR BLACK

Respondent:

MS CLARE

File Number:

SYC 3529 of 2010

Judgment of:

Scarlett FM

Hearing date:

14 March 2011

Date of Last Submission:

14 March 2011

Delivered at:

Sydney

Delivered on:

20 May 2011

REPRESENTATION

Counsel for the Applicant:

Mrs Messenger

Solicitors for the Applicant:

Neville & Hourn Legal

Counsel for the Respondent:

Ms Smyth

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS UNTIL FURTHER ORDER

All previous parenting orders are vacated.
The Father and the Mother are to have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2008 including but not limited to:
(a)The children’s education, including but not limited to enrolment at school, preschool and day-care;
(b)The religious and cultural upbringing;
(c)The children’s health;
(d)The children’s names; and
(e)All changes to the children’s or the parents’ living arrangements that make it significantly more difficult to bring about the time the children spend with or live with each parent under these Orders.
Each parent is to have the sole responsibility for making decisions about aspects of the care, welfare and development of the children on a day to day basis when the children are living with or spending time with that particular parent.
The children are to live with the Mother at all other times subject to the periods provided by these Orders when the children spend time with the Father.
The children are to spend time with the Father at times when he is in Sydney and not required to work as follows:
(a)[X] is to spend time with the father from the conclusion of school until 5:30 pm each Tuesday and Wednesday or such other day as the parties agree;
(b)[X] is to spend time with the Father from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend with the first of such weekends commencing on the first Friday immediately after the Father returns from working offshore according to his roster and every alternate Friday thereafter PROVIDED THAT if the Monday following the Sunday is a public holiday then [X] will spend time with the Father until the commencement of school on the Tuesday morning;
(c)[Y] is to spend time with the Father from 9:10 am until 5:30 pm each Tuesday and Wednesday or on such other day as the parties may agree;
(d)
[Y] is to spend time with the Father each alternate weekend being the same weekend as [X] spends time with the Father from

2:30 pm on Friday until 5:30 pm on the Saturday and…

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 Black and Clare

Details

AGLC: Black and Clare [2011] FMCAfam 477
Case: [2011] FMCAfam 477
Decision Date: 20 May 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Black and Clare addressed the issue of parenting orders for two children, [X] and [Y], born in 2005 and 2008 respectively. The case involved the determination of shared parental responsibilities and time-sharing arrangements between the Father and the Mother. The court was tasked with resolving disputes regarding the children's education, religious and cultural upbringing, health, and other significant living arrangements.

The legal issues the court needed to decide included establishing whether the children should have equal shared parental responsibility and, if so, what specific arrangements would best facilitate this. The court also needed to determine the day-to-day care responsibilities of each parent when the children were with them and set out detailed time-sharing schedules that took into account the Father's work commitments and the children's schooling.

The court found that equal shared parental responsibility was in the best interests of the children, allowing both parents to be involved in significant decisions about the children's lives. The detailed time-sharing arrangements were designed to accommodate the Father's work schedule while ensuring the children spent meaningful time with both parents. The court emphasized the importance of communication and cooperation between the parents for the children's well-being. The detailed parenting orders reflected a balanced approach that sought to promote the children's relationship with both parents and ensure their health and welfare were prioritized.

The court's final orders included vacating all previous parenting orders and establishing new ones that provided for equal shared parental responsibility and specific time-sharing arrangements. The children were to live primarily with the Mother, with detailed schedules for spending time with the Father based on his availability and the children's school and extracurricular activities. Both parents were required to maintain open communication and share information about the children's health and schooling. The orders also mandated that both parents be informed of and involved in the children's extra-curricular activities and educational institutions.

Orders

Orders of the court

ORDERS UNTIL FURTHER ORDERAll previous parenting orders are vacated.The Father and the Mother are to have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2008 including but not limited to:(a) The children’s education, including but not limited to enrolment at school, preschool and day-care;(b) The religious and cultural upbringing;(c) The children’s health;(d) The children’s names; and(e) All changes to the children’s or the parents’ living arrangements that make it significantly more difficult to bring about the time the children spend with or live with each parent under these Orders.Each parent is to have the sole responsibility for making decisions about aspects of the care, welfare and development of the children on a day to day basis when the children are living with or spending time with that particular parent.The children are to live with the Mother at all other times subject to the periods provided by these Orders when the children spend time with the Father.The children are to spend time with the Father at times when he is in Sydney and not required to work as follows:(a) [X] is to spend time with the father from the conclusion of school until 5:30 pm each Tuesday and Wednesday or such other day as the parties agree;(b) [X] is to spend time with the Father from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend with the first of such weekends commencing on the first Friday immediately after the Father returns from working offshore according to his roster and every alternate Friday thereafter PROVIDED THAT if the Monday following the Sunday is a public holiday then [X] will spend time with the Father until the commencement of school on the Tuesday morning;(c) [Y] is to spend time with the Father from 9:10 am until 5:30 pm each Tuesday and Wednesday or on such other day as the parties may agree;(d) [Y] is to spend time with the Father each alternate weekend being the same weekend as [X] spends time with the Father from 2:30 pm on Friday until 5:30 pm on the Saturday and from 8:00 am until 5:30 pm on the Sunday immediately following PROVIDED THAT if the Monday following the Sunday is a public holiday then [Y] will spend time with the Father from 8:00 am until 5:30 pm on the Monday;(e) [X] and [Y] are to spend time with the Father from 8:00 am until 5:30 pm on Father’s Day and on the Father’s birthday in each year if those days should fall on days when the Father is in Sydney and not required to work and the children would not otherwise be spending time with the Father;(f) [X] is to spend time with the Father on his birthday from the conclusion of school until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father;(g) [Y] is to spend time with the Father on [X]’s birthday in 2011 from 9:10 am until 5:30 pm on [X]’s birthday if that day should fall on a day when he would not otherwise be spending time with the Father; (h) [Y] is to spend time with the Father on his birthday in 2012 from 2:30 pm until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father; and(i) [X] is to spend time with the Father on [Y]’s birthday in 2012 from 2:30 pm until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father; and(j) [X] and [Y] are to spend time with the Father from 12 noon on Christmas Day until 12 noon on Boxing Day 2011. For the purposes of giving effect to Order (5) above the Father is to collect the child [X] from school and return him to school on those days when his time concludes at the commencement of school and to the Mother’s residence on the days specified in Orders (5)(a), (e), (f), (g), (i) and (j).For the purposes of giving effect to Order (5) above the Father is to collect [Y] from the Mother’s residence or her nominee at [address omitted] and return him to the Mother’s residence and the Mother is to return [Y] to the Father’s residence on the Sunday and the Monday as provided by Orders (5)(d). The parties will do all things to encourage and facilitate at all reasonable times communications by the other parent (who shall initiate contact) with the children by telephone.The parties will keep each other informed in writing at all times of their residential addresses, an email address for the purpose of communication and contact telephone numbers both mobile and landline and advise each other of any change within twenty-four (24) hours.Each party must keep the other informed of the details of all health professionals consulted in relation to the children or either of them as soon as is reasonably possible.Both parties are at liberty to attend all extra-curricular activities for which the children are enrolled or registered and to which parents are invited or otherwise expected to attend.Both parties are at liberty to and are hereby authorized to communicate with, obtain information, documents and communications in relation to the children or either of them directly from the preschool of the school or either of them.In the event of a parent with whom the children would otherwise be living or spending time) is unable to care for the children for a period of more than 24 hours then that parent shall contact the other parent in order that the other parent may look after the children for that period unless the parties otherwise agree.Each party must immediately inform the other of all details relating to any illness, injury, medical treatment, medical procedure or hospitalisation of the children or either of them whilst in his or her care.

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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