Cassidy and Cassidy - [2008] FMCAfam 1137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASSIDY & CASSIDY

[2008] FMCAfam 1137

FAMILY LAW – Parenting orders – relevant principles – presumption of equal shared parental responsibility not applied – evaluation of s.60CC criteria.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC & 65DAE

Briginshaw v Briginshaw (1938) 60 CLR 356
N & S & The Separate Representative (1996) FLC 92-655
Mills & Watson [2008] FMCAfam 2
Taylor & Barker (2007) FamCA 1246

Applicant:

MR CASSIDY

Respondent:

MS CASSIDY

File Number:

SYC 5446 of 2007

Judgment of:

Lindsay FM

Hearing dates:

12 & 13 June and 16 July 2008

Date of Last Submission:

16 July 2008

Delivered at:

Sydney

Delivered on:

17 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Ladopoulos

Solicitors for the Applicant:

Bowral Legal

Counsel for the Respondent:

Mr Henness

Solicitors for the Respondent:

R J Russell Solicitors

Counsel for the Independent Children’s Lawyer:

Ms Falloon

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of NSW

ORDERS

All previous parenting orders be discharged.
The mother do have sole parental responsibility for major long-term issues in relation to the three children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.
The said children do live with the mother.
The mother do all such things as may be reasonably required to facilitate the said children spending the following time with the father:
(a)during school term time:
(i)on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday;
(ii)on Wednesday evenings from the conclusion of school to 7:30pm;
(b)during Christmas school holiday periods:
(i)for the first half of each Christmas school holiday period commencing in 2008 and each alternate year thereafter;
(ii)for the second half of each Christmas school holiday period commencing in 2009 and each alternate year thereafter; and
(iii)for the purposes of paragraphs 4(b)(i) and (ii) of this Order, Christmas school holiday periods will:
(A)commence at 10am on the first day following the last day of the school year;
(B)end at 10am on the day immediately before the first day of the following school year; and
(C)the first half of the Christmas school holiday period will end at 10am on the day following the mid-point of the Christmas school holiday period;
(iv)SAVE AND EXCEPT that the said children will spend time with the father from 3pm on Christmas Eve until 3pm on Christmas Day in 2008 and each alternate year thereafter NOTING that the said children will spend time with the mother from 3pm on Christmas Eve until 3pm on Christmas Day in 2009 and each alternate year thereafter;
(c)on Father’s day from 9am until 5pm NOTING that the said children will spend time with the mother on Mother’s Day from 9am until 5pm; and
(d)such other times as the parties may agree.
In respect of any child that is not of school age delivery and collection of that child save be effected at the same time and at the same venue as the delivery…

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 Cassidy and Cassidy

Details

AGLC: Cassidy and Cassidy [2008] FMCAfam 1137
Case: [2008] FMCAfam 1137
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of Cassidy and Cassidy involved a dispute between the parents, concerning the care and custody of their three children, born in 2000, 2003, and 2005. The Family Court of Australia was tasked with determining the best interests of the children, focusing on their living arrangements, access schedules, and communication protocols between the parents.

The legal issues that the court had to address included determining the allocation of parental responsibility, establishing a suitable living arrangement for the children, creating an access schedule for the father, and setting guidelines for communication and co-operation between the parents. The court also needed to consider the children's educational and therapeutic needs, and the importance of minimising conflict exposure for the children.

The court concluded that it was in the best interests of the children for the mother to have sole parental responsibility for major long-term issues, while the father was granted specific access rights. The children were to live with their mother, with the father having access during school term times on alternate weekends and Wednesday evenings, as well as during specific periods of the Christmas school holidays. The court also outlined detailed communication protocols between the parents, including the use of mediation and counselling services, and restricted discussions about the proceedings and personal relationships of the other party in the presence of the children.

In summary, the court's orders discharged all previous parenting orders, granted sole parental responsibility to the mother for major long-term issues, established a living arrangement with the children residing with their mother, and detailed an access schedule and communication protocols for the father. The orders also included provisions for the parties to engage in mediation and counselling, ensure timely communication and consent for medical and therapeutic appointments, and restrict discussions about the proceedings and personal relationships in the presence of the children.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother do have sole parental responsibility for major long-term issues in relation to the three children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.

The said children do live with the mother.

The mother do all such things as may be reasonably required to facilitate the said children spending the following time with the father:

(a) during school term time:

(i) on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday;

(ii) on Wednesday evenings from the conclusion of school to 7:30pm;

(b) during Christmas school holiday periods:

(i) for the first half of each Christmas school holiday period commencing in 2008 and each alternate year thereafter;

(ii) for the second half of each Christmas school holiday period commencing in 2009 and each alternate year thereafter; and

(iii) for the purposes of paragraphs 4(b)(i) and (ii) of this Order, Christmas school holiday periods will:

(A) commence at 10am on the first day following the last day of the school year;

(B) end at 10am on the day immediately before the first day of the following school year; and

(C) the first half of the Christmas school holiday period will end at 10am on the day following the mid-point of the Christmas school holiday period;

(iv) SAVE AND EXCEPT that the said children will spend time with the father from 3pm on Christmas Eve until 3pm on Christmas Day in 2008 and each alternate year thereafter NOTING that the said children will spend time with the mother from 3pm on Christmas Eve until 3pm on Christmas Day in 2009 and each alternate year thereafter;

(c) on Father’s day from 9am until 5pm NOTING that the said children will spend time with the mother on Mother’s Day from 9am until 5pm; and

(d) such other times as the parties may agree.

In respect of any child that is not of school age delivery and collection of that child save be effected at the same time and at the same venue as the delivery and collection that is affected in relation to the child or children that is or are of school age.

The parties are restrained and an injunction is granted restraining each of them from permitting any relative or support person to be within one hundred (100) metres of the said children during handover.

The mother and the father do all such things as may be reasonably required to facilitate the said children communicating with the other parent by telephone as follows:

(a) between 8am and 8:30am on each of the said children’s birthdays, with the parent who does not have the said children in his or her care at that time to initiate the call; and

(b) at any other reasonable time that any of the said children may request, with the said child or children to initiate the call.

The parties do in the first instance communicate concerning arrangements for the said children by using e-mails, text messages or a communication book.

Each party do forthwith arrange with Relationships Australia to engage in such mediation sessions and/or counselling sessions as that organisation determines would be appropriate to assist them in their future communication about the said children and each party do, themselves or through their solicitors, advise the Independent Children’s Lawyer in writing as to:

(a) those mediation and/or counselling sessions which have been recommended by Relationships Australia;

(b) the date of completion of any intake procedures required prior to those sessions;

(d) the dates of completion of each process recommended by Relationships Australia.

10.

The parties do provide a sealed copy of this Order to any mediator, counsellor or therapist the parties may consult and to any professionals treating the said children from time to time.

11.

The parties are restrained and an injunction is granted restraining each of them from permitting any other person to be present at any premises while the parties are attending such premises for the purposes of mediation, counselling or therapy for the parties or for the said children or any of them.

12.

The parties do all such things as may be reasonably necessary to ensure that:

(a) the other party knows of any medical or dental or therapeutic appointments for the said children;

(b) the other party receives any reports or recommendations of professionals treating the said children; and

(c) all necessary consents for any medical or dental procedures or therapeutic interventions are sought and given in a timely manner,

NOTING that “therapeutic” appointments or intervention includes but is not limited to speech therapy.

13.

The parties are restrained and an injunction is granted restraining each of them from:

(a) discussing these proceedings or this Order with or in the presence of the said children or any of them or from permitting any other person so to do; and

(b) discussing the personal relationships of the other party with or in the presence of the said children or any of them or from permitting any other person so to do.

14.

The Independent Children’s Lawyer be at liberty to provide copies of this Order to any school, pre-school, day-care or after-school care facility the said children currently attend.

15.

The parties do comply with a request from the Independent Children’s Lawyer that the child [X] do attend at the office of the Independent Children’s Lawyer for the purposes of the Independent Children’s Lawyer explaining to [X] the effect of this Order on the time the said children will spend with each party.

16.

The order for the appointment of the Independent Children’s Lawyer be discharged on the date three (3) calendar months following the date of this Order.

17.

All applications do otherwise stand dismissed.

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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