Donovan and Hargrave - [2013] FCCA 146

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONOVAN & HARGRAVE

[2013] FCCA 146

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility whether children’s father should have sole parental responsibility – whether children should reside with their mother – children’s views considered.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 62G, 68L, 65DAA

Cases cited:
Donovan & Hargrave [2010] FMCAfam 1458
Donovan & Hargrave [2011] FMCAfam 1494
Donovan & Hargrave [2012] FMCAfam 306
Donovan & Hargrave [2012] FMCAfam 410
In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Judge Scarlett

Hearing date:

24 September 2012

Date of Last Submission:

24 September 2012

Delivered at:

Sydney

Delivered on:

26 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

Counsel for the Respondent:

The Respondent appeared in person

Independent Children’s Lawyer :

Ms Karagiannis

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

PARENTING ORDERS

All previous parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2000.
The children [X] and [Y] are to live with the Respondent Father.
The child [X] is to spend time with the Applicant Mother in accordance with his wishes.
The child [Y] is to spend time with the Applicant Mother as follows:
(a)for a period of two (2) weeks over the December/January school holidays in each year from 2 January to 16 January in each year;
(b)on Mother’s Day in each year from 9:00am until 6:00pm;
(c)on Christmas Day 25 December in each year from 9:00am until 6:00pm;
(d)on Good Friday in each year from 9:00am until 6:00pm;
(e)on the child [Y]’s birthday [date omitted] in each year from 4:00pm to 8:00pm if that day should fall on a school day and from 10:00am to 6:00pm if that day should fall on a day other than a school day;
(f)from 10:00am to 6:00pm on the middle Sunday of the Winter school holiday period in each year and the middle Sunday of the Spring school holiday period in each year
(g)such other time including overnight time as the child [Y] wishes.
The Respondent Father must do all things reasonably necessary to facilitate the children [X] and [Y] spending time with the Applicant Mother whenever they wish to do so.
The Independent Children’s Lawyer is to explain these orders to the children [X] and [Y] within fourteen (14) days.
These Orders operate as an authority for the Applicant Mother to obtain copies of school reports and any other documents including newsletters and information about school photographs ordinarily provided to parents of children attending the children’s school.
The Applicant Mother is permitted to attend the children’s school for the purpose of participating in parent-teacher interviews in respect 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 Donovan and Hargrave

Details

AGLC: DONOVAN & HARGRAVE [2013] FCCA 146
Case: [2013] FCCA 146
Decision Date: 26 April 2013

CaseChat Overview and Summary

In this matter before Judge Scarlett, the court considered parenting orders concerning the children of the marriage, [X] and [Y]. The dispute involved the arrangements for the children's living arrangements, time spent with each parent, and the extent of each parent's involvement in the children's lives.

The court was required to determine the appropriate parenting orders, including the allocation of parental responsibility, the primary residence of the children, and the specific time each parent would spend with the children. Additionally, the court needed to address issues of communication, access to information regarding the children's education and health, and the holding of the children's passports.

The court ordered that previous parenting orders be discharged and that the Applicant Mother and Respondent Father share equal parental responsibility. The children were to live with the Respondent Father, with child [X] to spend time with the Applicant Mother in accordance with his wishes. Specific time arrangements were detailed for child [Y] with the Applicant Mother, including holiday periods, special days, and additional time as the child wished. The court also mandated that the Respondent Father facilitate the children spending time with the Applicant Mother, and that the Applicant Mother have liberal communication with the children. Further orders addressed the Applicant Mother's access to school and medical records, the sharing of contact details, and the secure holding of the children's passports.

Orders

Orders of the court

PARENTING ORDERS

All previous parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2000.

The children [X] and [Y] are to live with the Respondent Father.

The child [X] is to spend time with the Applicant Mother in accordance with his wishes.

The child [Y] is to spend time with the Applicant Mother as follows:

(a) for a period of two (2) weeks over the December/January school holidays in each year from 2 January to 16 January in each year;

(b) on Mother’s Day in each year from 9:00am until 6:00pm;

(d) on Good Friday in each year from 9:00am until 6:00pm;

(e) on the child [Y]’s birthday [date omitted] in each year from 4:00pm to 8:00pm if that day should fall on a school day and from 10:00am to 6:00pm if that day should fall on a day other than a school day;

(f) from 10:00am to 6:00pm on the middle Sunday of the Winter school holiday period in each year and the middle Sunday of the Spring school holiday period in each year

(g) such other time including overnight time as the child [Y] wishes.

The Respondent Father must do all things reasonably necessary to facilitate the children [X] and [Y] spending time with the Applicant Mother whenever they wish to do so.

The Independent Children’s Lawyer is to explain these orders to the children [X] and [Y] within fourteen (14) days.

These Orders operate as an authority for the Applicant Mother to obtain copies of school reports and any other documents including newsletters and information about school photographs ordinarily provided to parents of children attending the children’s school.

The Applicant Mother is permitted to attend the children’s school for the purpose of participating in parent-teacher interviews in respect of each of the children [X] and [Y].

10.

The Respondent Father must advise the Applicant Mother as soon as is reasonably practicable in the event of any medical emergency or other emergency relating to either of the children [X] or [Y].

11.

These Orders operate as an authority for the Applicant Mother to obtain copies of any medical records or other documents and also to authorise any treating medical practitioner to consult with the Applicant Mother about the health and medical condition of both or either of the children [X] or [Y].

12.

The Respondent Father must keep the Applicant Mother advised of each child’s mobile telephone number and email address and must advise the Applicant Mother of any change to the mobile telephone number or email address of either of the children within three (3) days of any change occurring.

13.

The Applicant Mother is to have liberal telephone and email and other electronic communication with each of the children [X] and [Y].

14.

The passports of the children [X] and [Y] are to be held by the Sydney Registry of the Federal Circuit Court to be released only on the joint signatures of the Applicant and the Respondent or Order of the Court.

THE COURT NOTES THAT:

A. Mother’s Day falls on the second Sunday in May each year and next falls on Sunday 12 May 2013.

B. Good Friday next falls on Friday 18 April 2014.

C. The middle Sunday of the Winter school holiday period in New South Wales Public Schools in 2013 is Sunday 7 July.

D. The middle Sunday of the Spring school holiday period in New South Wales Public Schools in 2013 is Sunday 29 September 2013.

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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