Calhoun and Fortescue - [2008] FMCAfam 793

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALHOUN & FORTESCUE

[2008] FMCAfam 793

FAMILY LAW – Parenting – relevance of mother’s psychiatric and psychological health – where not in dispute that children should live with father and spend time with mother – where children spending time with mother on a wholly unsupervised basis comprises an unacceptable risk – whether mother’s time with children should be monitored (by family members and mother’s support network) or made subject to requirement that an appropriate person be in substantial attendance.

Family Law Act 1975 (Cth)

Calhoun & Fortescue [2006] FMCAfam 511
Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
Martinovich (2005) FMCAfam710
McLeay (1996) FLC 92-667
Mills & Watson (2008) FMCAfam 2
Taylor & Barker (2007) FamCA 1246

Applicant:

MS CALHOUN

Respondent:

MR FORTESCUE

File Number:

MLM 7875 of 2006

Judgment of:

Walters FM

Hearing dates:

7 – 9 November 2007

Date of Last Submission:

9 November 2007

Delivered at:

Melbourne

Delivered on:

14 August 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

Cahill & Rowe Family Law

Counsel for the Respondent:

Ms Ben-Simon

Solicitors for the Respondent:

Whyte Just & Moore

Counsel for the Independent Children’s Lawyer:

Mr Whitchurch

Solicitors for the Independent Children’s Lawyer:

Samantha Ward Pty

ORDERS

IT IS ORDERED THAT:

All previous orders be discharged.
The mother and the father have equal shared parental responsibility for the children [X] born in 1997 and [Y] born in 2004.
Subject to paragraphs 4, 5, 6 & 7 below, the children live with each of the parties as follows:
(a)with the mother:
(i)in each alternate week from after school on Wednesday until 5.00 p.m. Sunday;
(ii)for no less than 10 days in the Christmas holidays in each year at times to be agreed between the parties and failing agreement as follows:
(A)
from 10 a.m. on 24 December 2007 to 5 p.m. on

3 January 2009
and in each alternate year thereafter; and
(B)
from 10 a.m. on 27 December 2008 to 5 p.m. on

6 January 2009
and in each alternate year thereafter;
(iii)for no less than 7 days in the June/July school holidays in each year as agreed between the parties and failing agreement from 10 a.m. on the first Saturday to 10 a.m. on the second Saturday;
(iv)from 10 a.m. to 5 p.m. on Mother’s Day in each year;
(v)the mother’s time with the children pursuant to paragraph 3(a)(i) above be suspended from:
(A)the conclusion of school at the end of term 4 in 2007 until 15 January 2008 and in each year thereafter;
(B)for the whole of the June/July school holidays in each year; and
(C)from 10 a.m. to 5 p.m. on Father’s Day each year;
(vi)for no less than 5 hours on Easter Sunday in each year at times to be agreed between the parties and failing agreement from 12 noon to 5 p.m. on Easter Sunday (in the event that Easter Sunday falls during the mother’s time…

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 Calhoun and Fortescue

Details

AGLC: Calhoun and Fortescue [2008] FMCAfam 793
Case: [2008] FMCAfam 793
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Calhoun and Fortescue was heard, focusing on the parental arrangements for the children, [X] and [Y]. The primary legal issue was the determination of the shared parental responsibility and the specific time-sharing arrangements between the mother and the father, considering the welfare and best interests of the children. The court was also required to address the need for supervision during certain periods when the children were in the mother's care due to concerns about her ability to provide safe and appropriate care.

The court's reasoning centred on the paramount consideration of the children's welfare. It recognised the importance of maintaining a close and meaningful relationship between both parents and the children, while also addressing the concerns regarding the mother's capacity to care for them unsupervised. The decision reflected a balanced approach, granting equal shared parental responsibility to both parents and setting detailed time-sharing arrangements that aimed to ensure the children's safety and well-being. The court also mandated supervision and monitoring during specific periods when the children were with the mother, specifying the individuals who could provide such supervision and the conditions under which it would be required.

The outcome of the case resulted in comprehensive orders that discharged all previous orders and established new arrangements for shared parental responsibility and time-sharing. The children were to live with each parent on a specified schedule, with additional conditions for supervision during certain periods to ensure their safety. The court also outlined procedures for communication between the children and each parent, as well as provisions for enrolling the children in specific programs and sharing associated costs. The final orders mandated that each party keep the other informed of any changes to their contact details and provided for ongoing liberty to apply for variations to the orders as necessary.

Orders

Orders of the court

IT IS ORDERED THAT:

All previous orders be discharged.

The mother and the father have equal shared parental responsibility for the children [X] born in 1997 and [Y] born in 2004.

Subject to paragraphs 4, 5, 6 & 7 below, the children live with each of the parties as follows:

(a) with the mother:

(i) in each alternate week from after school on Wednesday until 5.00 p.m. Sunday;

(ii) for no less than 10 days in the Christmas holidays in each year at times to be agreed between the parties and failing agreement as follows:

(A)

from 10 a.m. on 24 December 2007 to 5 p.m. on

3 January 2009

and in each alternate year thereafter; and

(B)

from 10 a.m. on 27 December 2008 to 5 p.m. on

6 January 2009

and in each alternate year thereafter;

(iii) for no less than 7 days in the June/July school holidays in each year as agreed between the parties and failing agreement from 10 a.m. on the first Saturday to 10 a.m. on the second Saturday;

(iv) from 10 a.m. to 5 p.m. on Mother’s Day in each year;

(v) the mother’s time with the children pursuant to paragraph 3(a)(i) above be suspended from:

(A) the conclusion of school at the end of term 4 in 2007 until 15 January 2008 and in each year thereafter;

(B) for the whole of the June/July school holidays in each year; and

(vi) for no less than 5 hours on Easter Sunday in each year at times to be agreed between the parties and failing agreement from 12 noon to 5 p.m. on Easter Sunday (in the event that Easter Sunday falls during the mother’s time with the children, such time shall be suspended from 12 noon to Easter Sunday);

(vii) for no less than 3 hours on each of the children’s birthdays and the mother’s birthday at times to be agreed between the parties and failing agreement from 3.30 p.m. to 6.30 p.m.; and

(viii) for such further or other periods as may be agreed between the parties, and

(b) with the father at all other times.

Until 9 November 2008 the periods that the children live with the mother pursuant to paragraph 3 above shall be subject to an appropriate person being in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance.

From 9 November 2008:

(a) for each period that the children live with the mother pursuant to paragraph 3(a)(i) above:

(i) the period from Wednesday after school until 5 p.m. Friday shall be monitored by an appropriate person; and

(ii) thereafter the period from 5 p.m. Friday until 5 p.m. Sunday shall be subject to an appropriate person being in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance;

(b) on each day that the children live with the mother pursuant to paragraph 3(a)(iv), (vi) and (vii) above, the said time shall be monitored by an appropriate person;

(c) on each day that the children live with the mother pursuant to paragraph 3(a)(ii) and (iii) above, an appropriate person shall be in substantial attendance and in the event that an appropriate person is not able to be in substantial attendance, the said period shall be reduced to coincide with the time that an approved person is able to be in substantial attendance.

The mother do telephone the father, by no later than 5 p.m. on the Monday prior to the commencement of each of the children’s periods living with the mother pursuant to paragraph 3 above, to notify him as to the appropriate person or persons who is/are to be monitoring her or to be in substantial attendance for the forthcoming period of time.

For the purposes of these orders:

(a) the following shall be an “appropriate person”:

(i) Ms M;

(ii) Ms P;

(iii) Mr P;

(iv) Mr R;

(v) Ms E;

(vi) Ms H;

(vii) Ms W;

(viii) Dr V or his nominee:

(ix) Ms S or her nominee;

(x) a qualified person from the Active Care Attendant Care Agency to be nominated by Ms J (or any subsequent director of the said agency);

(xi) Ms H or any other appropriately qualified social worker from the Salvation Army, [omitted] Mental Health Services; or

(xii) any other person agreed between the mother and the father; and

(b) a requirement that the time that the children live with the mother shall be “monitored” by an appropriate person shall mean that on the relevant day :

(i)

an appropriate person shall spend face to face time with the mother for no less than half an hour between the hours of

8 am and 12 noon; and

(ii) the mother shall telephone an appropriate person once between the hours of 12 noon and 5 p.m. and once between the hours of 5 p.m. and 10 p.m.

The children communicate with each of the parties as follows:

(a) by telephone on each Tuesday and Thursday between 6.00 p.m. and 6.30 p.m. when the children are in the care of the father, the mother to make the said telephone call to the children and the father to ensure that the children are available to receive the said telephone call; and

(b) by telephone each Thursday and Saturday between 6.00 p.m. and 6.30 p.m. when the children are in the care of the mother, the father to make the said telephone call to the children and the mother to ensure that the children are available to receive the said telephone call.

If at any time during the periods when the children are to live with the mother pursuant to these orders the mother is unable to care for the children due to ill health, the children shall be returned to or remain in the father’s care until such time as the mother is able to care for the children and upon the mother giving the father reasonable notice the children shall be returned to her and the periods of time that the children are to live with her shall resume.

10.

The parties do each forthwith provide the other with their current address, home telephone number and mobile telephone number and thereafter keep the other informed at all times of their new address and telephone numbers in the event that either of them changes any one or all of them.

11.

Changeovers shall take place as agreed between the parties, and failing agreement at [X]’s school (when such changeovers coincide with the conclusion of a school day) and otherwise outside the [shop omitted]

12.

The parties do each forthwith do all such acts and things and sign all such documents as may be required to enrol [X] in the “[omitted] Club” program at the [omitted] Centre and thereafter do all things necessary to ensure that she attends the said program until further order and further, in the event that there is any cost associated with [X] attending the said program, then such cost is to be shared equally by each of the parents.

13.

The mother shall authorise her psychiatrist Dr V and psychiatric nurse Ms S or whoever may from time to time be providing mental health care to the mother to provide the father with regular updates as to the mother’s state of mental health.

14.

Each party shall have liberty to apply at short notice in relation to these orders and if practicable such application shall be made to Federal Magistrate Walters.

15.

All extant applications be otherwise dismissed.

16.

Pursuant to rule 21.15 of the

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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