Delaney and Delaney - [2008] FMCAfam 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DELANEY & DELANEY

[2008] FMCAfam 674

FAMILY LAW – Parenting – where child has expressed a strong view to live with father – where father has formed alliance with child against mother – where father has sought to alienate child from mother – where father asserts child is afraid of mother – where father motivated by determination to punish mother and to remove child from her care – where court expert urges court to extricate child from "emotionally toxic environment" – where mother is a sensible, caring and responsible parent – where, given the child's age and father's influence over him, court reluctantly concludes that parties should have equal shared parental responsibility – where court reluctantly concludes that shared care is only current viable alternative.

Family Law Act 1975 (Cth)

Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
McLeay (1996) FLC 92-667
Mills & Watson (2008) FMCAfam 2
Pender & Haywood [2007] FamCA 1526
PST & CPR (2006) FMCAfam 36
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Taylor & Barker (2007) FamCA 1246

Applicant:

MS DELANEY

Respondent:

MR DELANEY

File Number:

MLM 9679 of 2004

Judgment of:

Walters FM

Hearing date:

18 July 2007

Date of Last Submission:

18 July 2007

Delivered at:

Melbourne

Delivered on:

25 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Morrison & Sawers

Counsel for the Respondent:

Mr Hannan

Solicitors for the Respondent:

Dawes & Vary Pty

Counsel for the Independent Children’s Lawyer.

Mr Nicholson

Solicitors for the Independent Children’s Lawyer:

Suzanna Sheed & Associates, Shepparton

ORDERS

IT IS ORDERED THAT:

All current parenting Orders be discharged.
The husband and the wife have equal shared parental responsibility for the child [M] born in 1995.
The child live with the wife from immediately after school Monday
28 July 2008 to immediately after school Friday 1 August 2008.
The child live with the husband from immediately after school Friday 25 July 2008 until immediately after school Monday 28 July 2008.
The child live with the husband from immediately after school Friday

1 August 2008until immediately before school Friday 8 August 2008, and each alternate week thereafter.
The child live with the wife from immediately after school Friday
8 August 2008 until immediately before school Friday 15 August 2009, and each alternate week thereafter.
For the purpose of the child’s changeover from one party to the other pursuant to these orders:
(a)the husband or his nominee shall collect the child from and return the child to school at the commencement and conclusion of each period during which the child is to live with the husband, and where such period commences and/or concludes on a school day;
(b)the wife or her nominee shall collect the child from and return the child to school at the commencement and conclusion of each period…

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 Delaney and Delaney

Details

AGLC: Delaney and Delaney [2008] FMCAfam 674
Case: [2008] FMCAfam 674
Decision Date: 25 July 2008

CaseChat Overview and Summary

The case of Delaney and Delaney involves the dispute between the husband and wife regarding the care and custody of their child, [M], born in 1995. The matter was heard by the Federal Magistrates Court in Melbourne, where the court was tasked with determining the best parenting arrangements for the child. The legal issues at hand included the allocation of shared parental responsibility, the establishment of a parenting schedule, and the issuance of various directives to ensure the welfare and proper communication between the parents regarding the child.

The court meticulously considered the evidence and submissions from both parties and the independent children’s lawyer. It determined that both parents should have equal shared parental responsibility for the child. The court devised a detailed parenting schedule that alternates the child’s residence between the parents, with specific arrangements for school pick-ups and drop-offs. Additionally, the court imposed several directives aimed at maintaining a respectful and cooperative environment for the child, including restrictions on communication and conduct towards each other and their respective households.

In its reasoning, the court emphasised the paramount importance of the child's best interests and sought to provide a balanced arrangement that would foster a stable and nurturing environment. The court also addressed specific concerns regarding the child's education and health, mandating certain communications and notifications between the parents. Furthermore, the court issued a Recovery Order to ensure the child's safety and location could be enforced if necessary.

The court's final orders discharged all existing parenting orders and established new arrangements that included detailed provisions for the child’s living arrangements, communication between parents, and specific directives to prevent conflict and ensure the child's welfare. The husband was ordered to pay the wife's costs, and all other pending applications were dismissed. The court noted that the particulars of the obligations and potential consequences of contravening these orders were detailed in an attachment to the judgment.

Orders

Orders of the court

IT IS ORDERED THAT:

All current parenting Orders be discharged.

The husband and the wife have equal shared parental responsibility for the child [M] born in 1995.

The child live with the wife from immediately after school Monday

28 July 2008 to immediately after school Friday 1 August 2008.

The child live with the husband from immediately after school Friday 25 July 2008 until immediately after school Monday 28 July 2008.

The child live with the husband from immediately after school Friday

1 August 2008until immediately before school Friday 8 August 2008, and each alternate week thereafter.

The child live with the wife from immediately after school Friday

8 August 2008 until immediately before school Friday 15 August 2009, and each alternate week thereafter.

For the purpose of the child’s changeover from one party to the other pursuant to these orders:

(a) the husband or his nominee shall collect the child from and return the child to school at the commencement and conclusion of each period during which the child is to live with the husband, and where such period commences and/or concludes on a school day;

(b) the wife or her nominee shall collect the child from and return the child to school at the commencement and conclusion of each period during which the child is to live with the wife, and where such period commences and/or concludes on a school day; and

(c) the husband or his nominee shall collect the child from and return the child to the wife’s residence at all other times.

The wife do:

(a) keep the husband advised at all times of the current residential address and landline telephone number of the child;

(b) advise the husband immediately in the event that the child suffers any serious illness or injury;

(c) authorise any medial practitioner upon whom the child may attend from time to time, to communicate with the husband regarding the child’s medical condition and/or requirements;

(d) authorise all schools which the child may attend from time to time to:

(i) provide to the husband, at the expense of the husband, copies of all school reports, school notices and school photographs in relation to the child;

(ii) communicate with the husband, either by telephone, in writing or by personal attendance, regarding the child’s progress at his school; and

(iii) permit the husband to attend all school functions to which parents are normally invited, save as provided for in paragraph 11(g) below.

The wife, her servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the husband or any member of his household in the presence or hearing of the child, and from permitting any other person so to do:

(b) discussing these proceedings in the presence or hearing of the child; and

10.

The husband do:

(a) keep the wife advised at all times of the current residential address and landline telephone number of the child;

(b) advise the wife immediately in the event that the child suffers any serious illness or injury;

(c) authorise any medical practitioner upon whom the child may attend from time to time to communicate with the wife regarding the child’s medical condition and/or requirements; and

(d) advise the wife of any proposed interstate holiday travel with the child, and provide a contact number where the child can be reached in the event of emergency.

11.

The husband, his servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the wife or any member of her household in the presence or hearing of the child, and from permitting any other person so to do;

(b) discussing these proceedings in the presence or hearing of the child;

(d) attending at the child’s school, save to attend all school functions to which parents are normally invited; and

(e) showing the child any documents filed in these proceedings;

and whilst the child is in the wife’s care pursuant to these Orders, the husband, his servants and agents be and are hereby further restrained by injunction from:

(f) attending at the wife’s premises, or within 200 metres thereof, save as provided for in paragraph 7(c) above;

(g) attending at the child’s school or within 200 metres thereof;

(h) attending any sporting activity in which the child is currently engaged, or within 200 metres thereof; and

(i) contacting or attempting to contact or communicate with the child by any means.

12.

The husband, the wife and the independent children’s lawyer shall each be at liberty to provide a copy of these Orders to any one or more of the following:

(a) the principal or delegate of the Principal of the school attended from time to time by the child; and

(b) any medical practitioner and/or allied health professional attending upon the child.

13.

A Recovery Order be prepared and do remain on the Court file, and if issued do authorise/direct the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(a) to find and recover the child and deliver the child to the wife at such place as the wife and the person affecting such recovery agree to be appropriate; and

(b) to stop and search any vehicles , vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

14.

Save that the execution of such order shall be stayed pending further order of Walters FM, or another Federal Magistrate of the Federal Magistrates Court at Melbourne in the absence of Walters FM.

15.

The wife have liberty to apply to Walters FM (or to another Federal Magistrate of the Federal Magistrates Court at Melbourne in the event of Walters FM’s absence or unavailability) in Chambers ─ on short notice by way of telephone mention ─ for the execution of the Recovery Order referred to herein.

16.

Upon the husband or the wife giving the other a minimum of one month’s written notice of their intention to exercise holiday time with the child, each party may change one week of the time the child is to spend with the other parent during the Christmas Holidays pursuant to paragraphs 5 & 6 herein, to enable both parents to spend two consecutive weeks with the child.

17.

The child is to spend additional time with the wife as follows:

(a) from 5.00 p.m. 24 December 2008 to 3.00 p.m. 25 December 2008 and each alternate year thereafter;

(b) from 3.00 p.m. 25 December 2009 to 5.00 p.m. 26 December 2009 and each alternate year thereafter; and

(c) in the event that the child is not already living with the wife on the relevant occasion, for three hours on the child’s birthday, the mother’s birthday and Mother’s Day.

18.

The child is to spend additional time with the husband as follows:

(a) from 3.00 p.m. 25 December 2008 to 3.00 p.m. 26 December 2009 and each alternate year thereafter;

(b) from 5.00 p.m. 24 December 2009 to 3.00 p.m. 25 December 2009 and each alternate year thereafter; and

(c) in the event that the child is not already living with the husband on the relevant occasion, for three hours on the child’s birthday, the father’s birthday and Father’s Day.

19.

The appointment of the independent children’s lawyer be discharged.

20.

The husband do pay the wife’s costs fixed in the sum of $8,000.00 – such costs to be paid from the funds available.

21.

All extant applications otherwise be dismissed.

AND THE COURT NOTES THAT:

22.

Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.