Collins and Timms - [2011] FMCAfam 907

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLLINS & TIMMS

[2011] FMCAfam 907

FAMILY LAW – Children – death of mother – issues of co-parenting between father and maternal aunt.

Family Law Act 1975, ss.60B, 60B(2), 60CA, 60CC, 61DA and 65DAA

Dennett & Norman [2007] FamCA 57
D & F [2001] FamCA 382
Kay & Jasper [2007] FamCA 1646
Rice & Miller (1993) FLC 92-415
Malcolm & Monroe & Anor (2011) FLC 93-460

Applicant:

MR COLLINS

Respondent:

MS TIMMS

File Number:

ADC 214 of 2010

Judgment of:

Cole FM

Hearing dates:

9, 10 and 11 March and 18 May 2011

Date of Last Submission:

18 May 2011

Delivered at:

Adelaide

Delivered on:

1 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

White Berman & Co.

Counsel for the Respondent:

Ms Tinning

Solicitors for the Respondent:

Barr Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Hemsley

Independent Children’s Lawyer:

Legal Services Commission of South Australia

ORDERS

Noting that in these orders in the event that the handover occurs when it is not a school day, where the reference is to the conclusion of school that shall be taken to read 5.00pm and where the reference is to the commencement of school the time shall be taken to read 9.00am

The parties have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2009.
The children live with the father as follows:
(a)as from 8 September 2011:
(i)from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Thursday.
(b)as and from 1 December 2011:
(i)from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.
(c)as and from the beginning of Term 1 2012:
(i)from the conclusion of school on Wednesday until 5.00pm on Sunday each alternate weekend; and
(ii)each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.
(d)as and from [date omitted] 2013 (when [Y] turns 4) in each alternate week from the conclusion of school on Friday (or 4.30pm if a non-school day) until the same time on the following Friday;
(e)as and from the week commencing 4 July 2013 in each alternate week from the conclusion of school on Thursday to the commencement of school on the following Friday (being eight nights);
(f)on Father’s Day between 10.00am and 5.00pm;
(g)from 12 noon on 24 December 2011 until 3.00pm on 25 December 2011 and between the same time in each alternate year thereafter; and
(h)from 3.00pm on 25 December 2012 and 5.00 pm 26 December 2012 and between the same time in each alternate year thereafter.
The children live with the maternal aunt (“the aunt”) at all other times including:
(a)from 10.00am to 5.00pm on Mother’s Day;
(b)on the birthday of…

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 Collins and Timms

Details

AGLC: Collins and Timms [2011] FMCAfam 907
Case: [2011] FMCAfam 907
Decision Date: 1 September 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Collins and Timms involved a dispute over parenting arrangements for two children. The primary concern was establishing a clear and detailed schedule for the children's time with each parent, along with provisions for special occasions and holidays. The children, born in 2004 and 2009, were to live primarily with their father, with specific times allocated for their time with their mother and other relatives. The legal issues included determining the precise schedule for the children's time with each parent, the location and timing of handovers, and the parameters for interstate travel and special occasions. The court also addressed the need for co-parent counselling and the appointment of an independent counsellor for the children.

The court carefully considered the welfare and best interests of the children in crafting its decision. It provided a detailed schedule for the children's time with each parent, including specific times for handovers and special occasions. The court also stipulated the locations for these handovers, often inside the school grounds or at designated contact services. Additionally, the court addressed the parents' ability to take the children interstate, requiring fourteen days' written notice and an itinerary. To improve communication and co-parenting skills, the court mandated co-parent counselling sessions and the appointment of an independent counsellor for the children. The court also issued an injunction to prevent either parent from removing the children from Australia without the other's consent or a court order.

The court's final orders included specific provisions for the children's time with each parent, detailed handover schedules, and parameters for interstate travel. The court also mandated co-parent counselling and the appointment of an independent counsellor for the children. It further issued an injunction against removing the children from Australia without consent or a court order. These comprehensive arrangements aimed to ensure the children's welfare and facilitate a harmonious co-parenting relationship.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2009.

The children live with the father as follows:

(a) as from 8 September 2011:

(i) from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and

(ii) each alternate week from the conclusion of school on Tuesday until the conclusion of school on Thursday.

(b) as and from 1 December 2011:

(i) from the conclusion of school on Thursday until 5.00pm on Sunday each alternate weekend; and

(ii) each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.

(i) from the conclusion of school on Wednesday until 5.00pm on Sunday each alternate weekend; and

(ii) each alternate week from the conclusion of school on Tuesday until the conclusion of school on Friday.

(d) as and from [date omitted] 2013 (when [Y] turns 4) in each alternate week from the conclusion of school on Friday (or 4.30pm if a non-school day) until the same time on the following Friday;

(e) as and from the week commencing 4 July 2013 in each alternate week from the conclusion of school on Thursday to the commencement of school on the following Friday (being eight nights);

(f) on Father’s Day between 10.00am and 5.00pm;

(g) from 12 noon on 24 December 2011 until 3.00pm on 25 December 2011 and between the same time in each alternate year thereafter; and

(h) from 3.00pm on 25 December 2012 and 5.00 pm 26 December 2012 and between the same time in each alternate year thereafter.

The children live with the maternal aunt (“the aunt”) at all other times including:

(a) from 10.00am to 5.00pm on Mother’s Day;

(b) on the birthday of the children’s mother Ms Collins (13 March) between 10.00am and 5.00pm (if a non-school day) and 3.00pm and 7.00pm (if a school day);

(c) from 3.00pm on 25 December 2011 until 5.00pm on 26 December 2011 and between the same time in each alternate year; and

(d) from 12 noon on 24 December 2012 until 3.00pm on 25 December 2012 and between the same time in each alternate year thereafter.

On each of the children’s birthdays the children live with the party who does not otherwise have the children in their care for a period of three hours at times to be agreed between the parties save and except in the event where the children are interstate on holidays on their birthday then and in such event the party who does not otherwise have the children in their care shall communicate with them by telephone.

As and from the Christmas school holidays for 2014 the parties be at liberty to vary the week about arrangement for the holidays such that the parties have the children in their care for a two week and a one week block of the Christmas school holidays thereafter, save as set out in these orders for special occasions.

The orders made for the parties to spend time with the children on special occasions shall apply in lieu of the weekly time that the children spend with the parties.

Handovers shall occur as follows:

(a) where a handover occurs on a school day and coincides with the conclusion of school then same shall occur at the children’s school inside the school grounds; and

(b) otherwise all handovers shall occur at the Children’s Contact Service, [suburb omitted] or where unavailable inside the [omitted] Police Station.

The parties be at liberty to take the said children interstate during the time they are in their care provided that fourteen days written notice is provided to the other party including an itinerary of travel.

The parties be restrained and an injunction be granted restraining each of them from removing the said children from the Commonwealth of Australia without the express written permission of the other party or an Order of this Honourable Court.

10.

The parties do forthwith arrange for co-parent counselling with Relationships Australia, Centacare or such other like organisation with a view to improving their communication skills and to discussing matters relating to the children generally and that:

(a) the parties initially attend individual counselling appointments (with the same counsellor);

(b) thereafter the parties attend joint appointments with the same counsellor;

(c) the parties continue to attend regular co-parent counselling on not less than four occasions each year and on such further occasions as may be recommended by the counsellor; and

(d) the parties share equally in the cost of all joint counselling appointments (with the parties to bear the cost of their own individual appointments).

11.

The parties do forthwith agree on an independent counsellor for the child [X] (and [Y]) to attend upon for therapeutic counselling to discuss any issues or concerns that may arise from time to time for that child.

12.

The save as to the counsellor referred to in paragraph 16 aforesaid, the parties be and are hereby restrained by injunction from allowing or permitting the children to attend upon any counsellor or psychologist save and except with the written consent of the other party.

13.

The proceedings be otherwise 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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