FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLES & MCCULLOUGH | [2013] FCCA 883 |
| Catchwords: FAMILY LAW – Parenting orders – relocation – equal time – best interests of the child. |
| Legislation: Family Law Act 1975, ss.60, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Sch. 1, Pt 2, Item 45 |
| Cases cited: KB & TC (2005) FLC 93-224 Champness & Hanson (2009) FLC 93-407 Mazorski and Albright (2007) 37 Fam LR 518 Morgan & Miles [2007] FamCA 1230 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 P & P [2006] FMCAfam 518 Runcorne & Raine [2008] FamCA 837 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MR CHARLES |
| Respondent: | MS MCCULLOUGH |
| File Number: | LNC 263 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 23, 24 & 26 April and 2, 14 & 15 May 2013 |
| Date of Last Submission: | 15 May 2013 |
| Delivered at: | Launceston |
| Delivered on: | 24 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | Levis Stace & Cooper |
| Counsel for the Respondent: | Mr M Verney |
| Solicitors for the Respondent: | Matthew Verney |
ORDERS
That Orders No. 3 and No. 4 of the Orders made by consent in the Family Court of Australia on 8 June 2010 are discharged.
That X born (omitted) 2007 (“the child”) is to live with MR CHARLES (“the father”) and MS MCCULLOUGH (“the mother”) on a week and week about basis from Friday after school or at 5.00 p.m. if it is not a school day until the following Friday at the start of school or 5.00 p.m. if it is not a school day.
That notwithstanding the arrangements as set out in Order No. 2 hereof the following shall apply:
(a)at Christmas in odd numbered years the child shall live:
(i)with the mother from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December; and
(ii)with the father from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December.
(b)at Christmas in even numbered years the child shall live:
(i)with the mother from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December; and
(ii)with the father from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December.
(c)at Easter in even numbered years the child shall live with the father from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(d)at Easter in odd numbered years the child shall live with the mother from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(e)on Mother’s Day the child shall live with the mother from 9.00 a.m. until 5.00 p.m..
(f)on Father’s Day the child shall live with the father from 9.00 a.m. until 5.00 p.m.
(g)on each of the parent’s birthdays the child shall live with the relevant parent from…
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- CHARLES & MCCULLOUGH [2013] FCCA 883
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- [2013] FCCA 883
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CaseChat Overview and Summary
The court was required to determine whether to discharge the existing consent orders and, if so, what new parenting arrangements should be put in place. A key issue was the mother's application to relocate the child to Victoria, which would necessitate a significant alteration to the existing shared parenting schedule.
Judge Roberts reasoned that the existing consent orders were no longer appropriate and discharged them. The court then made new orders establishing a week-on-week-about shared care arrangement for the child between the father and mother. Specific provisions were made for the child's time with each parent during Christmas, Easter, Mother's Day, Father's Day, and each parent's birthday, as well as the child's birthday. The court also ordered that the child spend at least three hours with the parent with whom she was not residing during that particular week on the child's birthday.
Ultimately, the mother's application to relocate the child to Victoria was dismissed. The court also included a provision for further arrangements to be made by agreement between the parties.
Orders
Orders of the court
1.
That Orders No. 3 and No. 4 of the Orders made by consent in the Family Court of Australia on 8 June 2010 are discharged.
2.
That X born (omitted) 2007 (“the child”) is to live with MR CHARLES (“the father”) and MS MCCULLOUGH (“the mother”) on a week and week about basis from Friday after school or at 5.00 p.m. if it is not a school day until the following Friday at the start of school or 5.00 p.m. if it is not a school day.
3.
That notwithstanding the arrangements as set out in Order No. 2 hereof the following shall apply:
(a) at Christmas in odd numbered years the child shall live:
(i) with the mother from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December; and
(ii) with the father from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December.
(b) at Christmas in even numbered years the child shall live:
(i) with the mother from 2.00 p.m. on 25 December until 5.00 p.m. on 26 December; and
(ii) with the father from 5.00 p.m. on 24 December until 2.00 p.m. on 25 December.
(c) at Easter in even numbered years the child shall live with the father from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(d) at Easter in odd numbered years the child shall live with the mother from after school on the Thursday preceding Good Friday (or at 5.00 p.m. if it is not a school day) until 2.00 p.m. on Easter Tuesday.
(e) on Mother’s Day the child shall live with the mother from 9.00 a.m. until 5.00 p.m..
(f) on Father’s Day the child shall live with the father from 9.00 a.m. until 5.00 p.m.
(g) on each of the parent’s birthdays the child shall live with the relevant parent from 9.00 a.m. until 5.00 p.m. if the day is not a school day but shall spend time with the relevant parent for at least 3 hours if the relevant day is a school day.
(h) on the child’s birthday the child is to spend at least 3 hours with the parent with whom she is not living in that particular week.
4.
That there be such further or other arrangements for the child as may be agreed between the parties from time to time.
5.
That the mother’s application to be permitted relocate the child’s residence to Victoria is 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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