Blainey and Starr - [2011] FMCAfam 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLAINEY & STARR

[2011] FMCAfam 988

FAMILY LAW – Children – father’s time with the children – father’s mental health.

Federal Magistrates Court Rules 2001, rule 21.15
Family Law Act 1975, ss.60B, 60B(2), 60CC, 65DAA and 65DAC

AMS and AIF (1999) FLC 92-852

Applicant:

MS BLAINEY

Respondent:

MR STARR

File Number:

MLC 871 of 2010

Judgment of:

Cole FM

Hearing dates:

25, 26 and 27 July 2011

Date of Last Submission:

15 August 2011

Delivered at:

Melbourne

Delivered on:

15 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms Moisidis

Solicitors for the Applicant:

KP Abbott & Co

Counsel for the Respondent:

Mr Goddard

Solicitors for the Respondent:

NA Young & Co

Counsel for the Independent Children’s Lawyer

Mr Tessoriero

Solicitor for the Independent Children’s Lawyer:

Lampe Family Law

ORDERS

That all current parenting orders be discharged.
That the mother and father have equal shared parental responsibility for the children X born on (omitted) 2003 and Y born on (omitted) 2006.
That the children live with the mother.
That the children spend time with the father as follows:
(a)for a period of 12 consecutive weeks from the date of these orders, from the conclusion of school each alternate Friday until 5:00pm Saturday and from the conclusion of school each alternate Wednesday commencing the following week until 7:00pm Wednesday evening and then;
(b)for a further period of 12 consecutive weeks, from the conclusion of school each alternate Friday until 12:00pm Sunday and from the conclusion of school each Wednesday commencing the following week until 7.00pm Wednesday evening and then;
(c)from the conclusion of school each alternate Friday until the commencement of school the following Monday and from the conclusion of school each Wednesday until the commencement of school Thursday;
(d)the time referred to in paragraph (4)(c) be suspended during school term holidays from the end of Term 2 in 2012 and the children spend time with the father for half of each of the mid year school holidays, as agreed, and in default of agreement such time shall:
(i)     commence at 9.00am on the first Saturday, and
(ii)    conclude at 6.00pm on the middle Saturday.
(e)for a consecutive period of seven days during Christmas school holiday period in 2011/2012 as agreed and failing agreement from 5.00pm on 28 December 2011 until 5.00pm on 5 January 2012;
(f)for half of the Christmas school holidays in each year (commencing 2012/2013) as agreed, and in default of agreement such time shall:
(i)     commence at 9.00am on the first Saturday; and
(ii)    conclude at 6.00pm on third Saturday;
(g)from 12.00pm on 25 December 2011 to 12.00pm on 26 December 2011 and each alternate year thereafter;
(h)from 12.00pm on 24 December 2012 to 12.00 p.m. 25 December 2012 and each alternate year thereafter;
(i)in the event Father’s Day does not fall on a weekend pursuant to paragraph (4)(c) then on the Father’s Day weekend in each year commencing 2012 from 5.00pm on Saturday to the commencement of school on the…

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 Blainey and Starr

Details

AGLC: Blainey and Starr [2011] FMCAfam 988
Case: [2011] FMCAfam 988
Decision Date: 15 September 2011

CaseChat Overview and Summary

Blainey and Starr involved a dispute between the parents of two children, X and Y, regarding their parenting arrangements. The matter was heard in the Family Court of Australia. The primary legal issues before the court were the determination of equal shared parental responsibility, the allocation of residence and the specification of time-sharing arrangements for the children with their father. The court was also required to decide on communication provisions, changeover procedures, and injunctions to protect the children from exposure to harmful behaviour and environments.

The court deliberated on the best interests of the children and found that both parents were capable of providing a loving and supportive environment. However, the court determined that the children should primarily reside with their mother while maintaining a significant and structured time-sharing schedule with their father. The court was meticulous in outlining detailed time-sharing arrangements, taking into consideration the children's educational commitments and holidays. The court also imposed specific communication protocols, changeover procedures, and contact restrictions to ensure the children's safety and well-being. Additionally, the court mandated the use of a communication book and completion of a post-separation parenting course by the mother. The court restrained both parents from using physical discipline and from denigrating the other parent in the presence of the children.

The court discharged all existing parenting orders and established new ones that provided for equal shared parental responsibility, detailed time-sharing arrangements, and specific communication and safety protocols. The court also restrained both parents from using physical discipline and from denigrating the other parent in the presence of the children. The court ordered the father to submit reports on his compliance with medical recommendations and discharged the order appointing an Independent Children’s Lawyer. The comprehensive orders aimed to foster a stable and supportive environment for the children, balancing the rights and responsibilities of both parents.

Orders

Orders of the court

That all current parenting orders be discharged.

That the mother and father have equal shared parental responsibility for the children X born on (omitted) 2003 and Y born on (omitted) 2006.

That the children live with the mother.

That the children spend time with the father as follows:

(a) for a period of 12 consecutive weeks from the date of these orders, from the conclusion of school each alternate Friday until 5:00pm Saturday and from the conclusion of school each alternate Wednesday commencing the following week until 7:00pm Wednesday evening and then;

(b) for a further period of 12 consecutive weeks, from the conclusion of school each alternate Friday until 12:00pm Sunday and from the conclusion of school each Wednesday commencing the following week until 7.00pm Wednesday evening and then;

(c) from the conclusion of school each alternate Friday until the commencement of school the following Monday and from the conclusion of school each Wednesday until the commencement of school Thursday;

(d) the time referred to in paragraph (4)(c) be suspended during school term holidays from the end of Term 2 in 2012 and the children spend time with the father for half of each of the mid year school holidays, as agreed, and in default of agreement such time shall:

(i) commence at 9.00am on the first Saturday, and

(ii) conclude at 6.00pm on the middle Saturday.

(e) for a consecutive period of seven days during Christmas school holiday period in 2011/2012 as agreed and failing agreement from 5.00pm on 28 December 2011 until 5.00pm on 5 January 2012;

(f) for half of the Christmas school holidays in each year (commencing 2012/2013) as agreed, and in default of agreement such time shall:

(i) commence at 9.00am on the first Saturday; and

(ii) conclude at 6.00pm on third Saturday;

(g) from 12.00pm on 25 December 2011 to 12.00pm on 26 December 2011 and each alternate year thereafter;

(h) from 12.00pm on 24 December 2012 to 12.00 p.m. 25 December 2012 and each alternate year thereafter;

(i) in the event Father’s Day does not fall on a weekend pursuant to paragraph (4)(c) then on the Father’s Day weekend in each year commencing 2012 from 5.00pm on Saturday to the commencement of school on the following Monday;

(j) in the event Mother’s Day falls on a weekend pursuant to paragraph (4)(c) then the children’s time with the father will conclude at 5.00pm on the Saturday preceding Mother’s Day; and

(k) as otherwise agreed between the parties.

That the father may communicate with the children by telephone on each of the child’s birthdays and the father’s birthday between 7.00 p.m. and 7.30 p.m. with the mother to instigate such calls and the children to communicate in private at such times;

That for the purpose of the children’s changeover pursuant to these orders, the father will collect X from School and Y from her childcare in 2011 (and thereafter from their school) and in the event changeover does not take place at the commencement and conclusion of a school day then changeover will be at McDonald's (omitted) in (omitted).

That the mother and father keep each other advised at all times of their current residential address, mobile and landline telephone numbers.

That the mother and father:

(a) advise each other immediately in the event that the children, or either of them suffer any serious illness or injury;

(b) authorize any medical practitioner upon whom the children, or either of them, may attend from time to time, to communicate with the other parent in respect to the child’s medical condition and/or requirements;

(c) enable the other parent to receive copies of all school (or pre- school) reports, school (or pre-school) notices and school (or pre- school) photographs in relation to the children; and

(d) be at liberty to attend all school (or pre school) functions to which parent are normally invited subject to any school policy in relation thereto.

That the mother or her servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the father in the presence or hearing of the children or either of them or from permitting the other person so to do;

(b) relocating to an address more than 100 kilometres from the mother’s current address without the written consent of the father or an Order of the Court;

(d) using physical discipline on the children or any of them.

10.

That the father or his servants and agents be and are hereby restrained by injunctions from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the father in the presence or hearing of the children or either of them or from permitting any other person so to do;

(b) changing the children’s school without the written consent of the mother or an Order of the Court;

11.

That whilst the children are in the father’s care pursuant to these orders, the father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:

(a) any legal medication prescribed by a registered medical practitioner and taken or used by the father strictly in accordance with such prescription; and

(b) any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, or taken by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

12.

That for 24 hours immediately prior to the children spending time with the father during all such time, the father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:

(a) any legal medication prescribed by a registered medical practitioner and taken or used by the father strictly in accordance with such prescription; and

13.

That the father purchase a communication book which the parties shall utilise to communicate with each other in respect to issues concerning the children.

14.

That the mother complete a post-separation parenting course.

15.

That within 14 days from the last day of March, June, September and December of each year the father request that Dr N provide Dr M with a brief report as to the father’s general compliance with his medical recommendations. The father will do all things necessary to allow the mother to receive a copy of such report as soon as practicable.

16.

That pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

17.

That the order of the Court appointing the Independent Children’s Lawyer be discharged.

18.

Pursuant to rule 21.15 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.