Charles and McCullough - [2013] FCCA 883

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…

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 Charles and McCullough

Details

AGLC: CHARLES & MCCULLOUGH [2013] FCCA 883
Case: [2013] FCCA 883
Decision Date: 24 July 2013

CaseChat Overview and Summary

In *Charles and McCullough*, heard by Judge Roberts, the dispute concerned parenting arrangements for a child. The parties, Mr Charles (the father) and Ms McCullough (the mother), sought to vary existing consent orders made in the Family Court of Australia. The mother also sought permission to relocate the child's residence to Victoria.

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

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 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.

That there be such further or other arrangements for the child as may be agreed between the parties from time to time.

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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