C and A - [2007] FMCAfam 551

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & A

[2007] FMCAfam 551

FAMILY LAW – Equal shared parental responsibility – poor communication – effect upon determination – not living in same locality – non-suitability of proposed self executing orders for share parenting – suggestion of intractable dispute and high conflict – factors to consider in shared parenting – circumstances leading to rebuttal.

Family Law Act 1975 (Cth), ss.60B, 60CC(2), (3), (4), 61DA(1)-(4), 65DAA

Parkinson, Prof. P, 20 Australian Journal of Family Law, “Decision making about the best interests of the child, the impact of the two tiers”
T & N [2001] FMCAfam 222

Applicant:

CTC

Respondent:

KLA

File number:

MLM 8605 of 2001

Judgment of:

Coker FM

Hearing dates:

10 & 11 July 2007

Date of last submission:

11 July 2007

Delivered at:

Townsville

Delivered on:

11 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr Honchin

Solicitors for the Applicant:

Tehan George & Co

Counsel for the Respondent:

Mrs Pagani

Solicitors for the Respondent:

Legal Aid Queensland

ORDERS

All previous orders be discharged.
The Mother have sole parental responsibility for long term decisions relating to the child, TJC born 21 April 1994, subject to communication and proper consideration of the views of the Father.
Notwithstanding the provisions of order 2:
(a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with her.
(b)The Father shall be responsible for the daily care and welfare of the child when the child is living with or spending time with him.
The Mother have sole parental responsibility for the child in relation to the following matters:
(a)Religious education
(b)Health decisions.
The child spend time with the Father at all reasonable times and, in particular, as follows:
(i)For the whole of the June/July and September/October Queensland school holiday periods;
(ii)For the Christmas school holiday period as agreed between the parties in writing and, failing agreement, for four weeks from 20 December in each even numbered year and for three weeks from 30 December in each odd numbered year.
(iii)The Father provide the Mother with one month’s notice in writing of his intention to spend time with the child and if such notice is not provided then the Mother is free to make other arrangements.
(iv)In the event that the Father is in T visiting then upon giving the Mother two weeks notice in writing if possible, he shall spend time with the child for the first weekend of his visiting period and for at least alternate weekends thereafter from Friday 5:00pm to Sunday 5:00pm (extended for public holidays).
(v)By telephone at all reasonable times but in particular Wednesday and Sunday evenings.
(vi)For the purpose of (a) and (b) above, the child shall travel accompanied by a flight attendant, the Father shall arrange and confirm flight details to the Mother no less than 21 days prior to each period and the Father shall be responsible for the costs of spending time with the child.
(vii)For 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 C and A

Details

AGLC: C and A [2007] FMCAfam 551
Case: [2007] FMCAfam 551
Decision Date: 11 July 2007

CaseChat Overview and Summary

The case of C and A involved the parents of a child, TJC, who were in dispute over parental responsibilities and time-sharing arrangements. The matter was heard and determined in the Family Court of Australia. The legal issues that the court had to address included the allocation of parental responsibility for long-term decisions, daily care, religious education, health decisions, and the specifics of time-sharing arrangements between the parents.

The court considered the evidence presented and the welfare of the child as the paramount concern. It found that the mother should have sole parental responsibility for long-term decisions but with the requirement to consider the father's views. Daily care responsibilities were shared, with the mother responsible when the child was with her and the father responsible when the child was with him or spending time with him. The mother was also given sole responsibility for religious education and health decisions. The time-sharing arrangements were detailed, including specific periods during school holidays and notice requirements for visitation. The court also addressed the child's name and prohibited both parents from denigrating the other in the presence or hearing of the child.

The outcome of the case was that the court issued detailed orders regarding parental responsibilities and time-sharing. The mother was granted sole parental responsibility for long-term decisions, subject to considering the father's views, and was responsible for religious education and health decisions. The father was responsible for daily care when the child was with him and was granted specific visitation rights during school holidays and other periods. The court also mandated that the child's name remain TJC but be known as C for other purposes. Both parents were restrained from denigrating each other in the presence or hearing of the child.

Orders

Orders of the court

All previous orders be discharged.

The Mother have sole parental responsibility for long term decisions relating to the child, TJC born 21 April 1994, subject to communication and proper consideration of the views of the Father.

Notwithstanding the provisions of order 2:

(a) The mother shall be responsible for the daily care, welfare and development of the child when the child is living with her.

(b) The Father shall be responsible for the daily care and welfare of the child when the child is living with or spending time with him.

The Mother have sole parental responsibility for the child in relation to the following matters:

(a) Religious education

(b) Health decisions.

The child spend time with the Father at all reasonable times and, in particular, as follows:

(i) For the whole of the June/July and September/October Queensland school holiday periods;

(ii) For the Christmas school holiday period as agreed between the parties in writing and, failing agreement, for four weeks from 20 December in each even numbered year and for three weeks from 30 December in each odd numbered year.

(iii) The Father provide the Mother with one month’s notice in writing of his intention to spend time with the child and if such notice is not provided then the Mother is free to make other arrangements.

(iv) In the event that the Father is in T visiting then upon giving the Mother two weeks notice in writing if possible, he shall spend time with the child for the first weekend of his visiting period and for at least alternate weekends thereafter from Friday 5:00pm to Sunday 5:00pm (extended for public holidays).

(v) By telephone at all reasonable times but in particular Wednesday and Sunday evenings.

(vi) For the purpose of (a) and (b) above, the child shall travel accompanied by a flight attendant, the Father shall arrange and confirm flight details to the Mother no less than 21 days prior to each period and the Father shall be responsible for the costs of spending time with the child.

(vii) For the purpose of (a) and (b) above, the Father can nominate to spend time with the child in T by notifying the Mother one month in advance.

The child continue to be known by the name of C and that each parent ensure that the child is for all purposes known by the name of TJC.

Each party is restrained and an injunction issue restraining each parent from denigrating the other parent in the presence of the child or within the hearing of the child or from allowing the child to remain in the presence of any other person acting in such a way.

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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