Durand and Morel - [2009] FMCAfam 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DURAND & MOREL

[2009] FMCAfam 22

FAMILY LAW – Children – equal shared parental responsibility – lives with – spends time with – four year old child having difficulty separating from mother – mother not heeding advice of staff of Contact Centre to leave quickly and make her goodbyes short.

Family Law Act1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA and 70NAC

Mills & Watson [2008] FMCAfam 2
Carpenter and Lunn (2008) FLC 93-382
Chappell and Chappell (2008) FLC 93-377
Goode & Goode (2006) FLC 93-286

Applicant:

MR DURAND

Respondent:

MS MOREL

File Number:

LNC 46 of 2008

Judgment of:

Roberts FM

Hearing dates:

17 July and 16 & 17 September 2008

Date of Last Submission:

17 September 2008

Delivered at:

Launceston

Delivered on:

21 January 2009

REPRESENTATION

Counsel for the Applicant:

Ms Trezise

Solicitors for the Applicant:

Andrea Trezise

Counsel for the Respondent:

Mr R Murray (17 July 2008)
Mr B Crawford (16 & 17 September 2008)

Solicitors for the Respondent:

Murray & Associates

Counsel for the Independent Child’s Lawyer:

Mr P Briffa (17 July 2008)
Mr P Fitzgerald (16 & 17 September 2008

Solicitors for the Independent Child’s Lawyer:

Legal Aid Commission of Tasmania

ORDERS

That MS MOREL (“the mother”) and MR DURAND (“the father”) are to have equal shared parental responsibility for [X] born in 2004 (“the child”).
That the child is to live with the mother.
That the child is to spend time with the father as follows:
(a)prior to the start of school in 2010, on a fortnightly cycle as follows:
(i)in week one, from Thursday after kindergarten or at 3.00 p.m. until 5.00 p.m. on the following Sunday;
(ii)in week two, from Thursday after kindergarten or at 3.00 p.m. until 9.00 a.m. on the following Friday.
(b)From the start of school in 2010, during school terms on a fortnightly cycle as follows:
(i)in week one, from Thursday after school until 5.00 p.m. on Sunday;
(ii)in week two, from Thursday after school until the start of school on the following morning (Friday).
(c)Commencing in the Easter break in 2010, for half of each school holiday (inclusive of the Easter break) as agreed between the parties, but failing agreement as follows:
(i)for the first half of the Easter break, May/June and August/September school holidays in odd numbered years and for the second half in even numbered years; and
(ii)week and week about during the long summer school holidays commencing in the first week in odd numbered years and in the second week in even numbered years.
(d)If the child is not otherwise spending time with the father pursuant to these orders:
(i)from 10.00 a.m. until 5.00 p.m. on Father's Day; and
(ii)from 4.00 p.m. until 7.30 p.m. on each of the child's birthday and the father's birthday.
(e)From 12.00 noon on Christmas Eve until 3.30 p.m. on Christmas Day in 2009 and in alternate years thereafter.
(f)From 3.30 p.m. on Christmas Day until 5.00 p.m. on Boxing Day in 2010 and…

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 Durand and Morel

Details

AGLC: Durand and Morel [2009] FMCAfam 22
Case: [2009] FMCAfam 22
Decision Date: 21 January 2009

CaseChat Overview and Summary

Durand and Morel involved a dispute between the parents of a child born in 2004 regarding the allocation of parental responsibilities and the child's living arrangements. The matter was heard in the Family Court of Australia. The primary concern was to determine how shared parental responsibility would be achieved and how the child’s time would be divided between the parents.

The legal issues before the court included the allocation of equal shared parental responsibility, the primary residence of the child, and the specific schedule for the child’s time to be spent with each parent. The court needed to consider the welfare and best interests of the child in making these decisions. The parents presented their respective cases, and evidence was provided to support their positions.

The court found that the child would benefit from an arrangement that allowed for substantial and significant time with both parents while ensuring stability and continuity in the child’s life. The decision was made to allocate equal shared parental responsibility between the parents and to have the child live primarily with the mother. The court devised a detailed schedule for the father to spend time with the child, which included specific times during weekends, school terms, and school holidays. The arrangement aimed to balance the child's need for stability with the father’s desire for regular and meaningful contact. The court also included provisions for special occasions and emergencies, ensuring that both parents could provide care for the child if needed. The court further imposed restrictions on removing the child from Tasmania and on smoking in the child’s presence to protect the child’s health and well-being.

Orders

Orders of the court

That MS MOREL (“the mother”) and MR DURAND (“the father”) are to have equal shared parental responsibility for [X] born in 2004 (“the child”).

That the child is to live with the mother.

That the child is to spend time with the father as follows:

(a) prior to the start of school in 2010, on a fortnightly cycle as follows:

(i) in week one, from Thursday after kindergarten or at 3.00 p.m. until 5.00 p.m. on the following Sunday;

(ii) in week two, from Thursday after kindergarten or at 3.00 p.m. until 9.00 a.m. on the following Friday.

(b) From the start of school in 2010, during school terms on a fortnightly cycle as follows:

(i) in week one, from Thursday after school until 5.00 p.m. on Sunday;

(ii) in week two, from Thursday after school until the start of school on the following morning (Friday).

(c) Commencing in the Easter break in 2010, for half of each school holiday (inclusive of the Easter break) as agreed between the parties, but failing agreement as follows:

(i) for the first half of the Easter break, May/June and August/September school holidays in odd numbered years and for the second half in even numbered years; and

(ii) week and week about during the long summer school holidays commencing in the first week in odd numbered years and in the second week in even numbered years.

(d) If the child is not otherwise spending time with the father pursuant to these orders:

(i) from 10.00 a.m. until 5.00 p.m. on Father's Day; and

(ii) from 4.00 p.m. until 7.30 p.m. on each of the child's birthday and the father's birthday.

(e) From 12.00 noon on Christmas Eve until 3.30 p.m. on Christmas Day in 2009 and in alternate years thereafter.

(f) From 3.30 p.m. on Christmas Day until 5.00 p.m. on Boxing Day in 2010 and in alternate years thereafter.

That unless the parties otherwise agree:

(a) for the purposes of paragraph (a) of Order No. 3 hereof;

(i) the father is to collect the child from her kindergarten on Thursdays, but if it is not a day on which she would be attending kindergarten, he is to collect her from the car park at [omitted] (“the car park”);

(ii) he is to return the child to the mother at the Launceston Children's Contact Centre, or the car park if that Centre is not available on Sundays; and

(iii) he is to return the child to the mother at the car park on Fridays.

(b) for the purposes of paragraphs (b) to (f) of Order No. 3 hereof;

(i) if any relevant day is a school day, the father is to collect the child from her school and return her to her school; or

(ii) if any relevant day is not a school day, he is to collect her from the car park and return her to the car park.

That if the child is otherwise spending time with the father pursuant to these orders on Mother's Day, on the child's birthday (other than pursuant to Order No. 3(d)(ii)) or on the mother's birthday, that time is to be suspended on Mother's Day from 10.00 a.m. and on each of the child's birthday and the mother's birthday from 4.00 p.m. until

7.30 p.m.

That if either the father or the mother is unable to provide personal care for the child for any period exceeding 48 hours, that parent must provide first option of care for the child to the other parent for that period.

That the father and the mother are each restrained from removing the child from the State of Tasmania without first obtaining the other party’s consent or an order of a Court of competent jurisdiction.

That the father and the mother are each restrained from smoking in the presence of the child in any motor vehicle, building or similar confined space or from permitting the child to be in the presence of any other person who is smoking in any motor vehicle, building or similar confined space.

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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