Farland and Farland - [2009] FMCAfam 1215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARLAND & FARLAND

[2009] FMCAfam 1215

FAMILY LAW – Children’s issues – parenting orders – arrangement of time between child and parents.

Family Law Act 1975, ss.60CA. 60CC. 61DA, 65DAC(3)(a)

Applicant:

MR FARLAND

Respondent:

MS FARLAND

File Number:

BRC 7305 of 2008

Judgment of:

Jarrett FM

Hearing date:

8 October 2009

Date of Last Submission:

8 October 2009

Delivered at:

Brisbane

Delivered on:

8 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hodges

Solicitors for the Applicant:

Kerry Barnes lawyers

Counsel for the Respondent:

Mr Cooper

Solicitors for the Respondent:

Rhonda Sheehy & Associates

ORDERS

That the Mother and the Father have equal shared parental responsibility for the child [X] born [in] 2004.
That the said child live with each of his parents for equal periods of time as follows:
(a)Order 3(d) of the Orders made 4^th October 2007 shall continue until the commencement of school in 2010;
(b)On a week about basis each Friday after school or 3.00pm if not a school day to commence Friday 29^th January 2010 with the Father;
(c)With the Father for the first half of the Easter public holidays/school holidays and the June/July and September/October school holidays and the Christmas school holidays in odd numbered years and the second half in even numbered years;
(d)With the Mother for the second half of the holidays referred to in 2.3 hereof in odd numbered years and the first half in even numbered years;
(e)Christmas Day will be spent with the parent having the first half of the Christmas school holiday period.
(f)That the Father spend time with the child on the Father’s Day weekend from 5.00pm Friday until 5.00pm Sunday;
(g)That the Mother spend time with the child on the Mother’s Day weekend from 5.00pm Friday until 5.00pm Sunday;
(h)That each parent be at liberty to telephone the child when in the other parent’s care on Sunday and Wednesday at 6.30pm;
(i)That the child spend time with each parent on their respective birthday from 9.00am to 5.00pm save that the parents shall forgo time on their birthday when exercising time pursuant to 2.3 hereof;
(j)That the parent who would not otherwise have the child on his birthday pursuant to these Orders shall spend time with him from 4.00pm to 8.30pm.
(k)That the week about arrangement referred to in 2.2 hereof shall be suspended during holiday time referred to in 2.3 and 2.4.
That changeover shall occur at the child’s school if a school day and at the home of the parent who has had the child if not a school day.
That the child commence his primary school education in 2010 commencing at Prep School or Grade 1 (as agreed between the parents) at the [N] College but in the event he is unable to attend such school then [B] School.
That both parents shall inform the other of any significant events in the child’s life and both parents shall notify the other immediately in the case 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.

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Details

Case: [2009] FMCAfam 1215
Decision Date: 8 October 2009

CaseChat Overview and Summary

In the case of Farland and Farland, the dispute involved the allocation of parental responsibilities and time-sharing arrangements for their child, [X], born in 2004. The Family Court was tasked with determining an equitable arrangement that balanced the parents' roles and provided stability and continuity in the child's life. The legal issues before the court included establishing equal shared parental responsibility, defining a time-sharing schedule that accommodated the child's schooling and holidays, and addressing specific provisions for special occasions, communication, and travel.

The court examined the parents' ability to cooperate and make decisions in the best interest of the child, ultimately concluding that equal shared parental responsibility was in the child's best interests. The court devised a detailed time-sharing arrangement that aimed to provide the child with equal periods of time with each parent while ensuring a predictable and consistent routine. The court also addressed the parents' obligations regarding communication, information sharing, and cooperation in matters such as education, medical care, and travel.

The court's reasoning was grounded in the welfare and best interests of the child, emphasising the importance of stability, predictability, and equal participation from both parents. The outcome involved a comprehensive set of orders that established a balanced and equitable arrangement for the child's upbringing, including specific provisions for holidays, special occasions, and travel. The court's orders sought to foster a cooperative environment and ensure that both parents could actively participate in the child's life.

The final orders included provisions for equal shared parental responsibility, detailed time-sharing schedules, communication protocols, and obligations related to education, health, and travel. The court also addressed the issuance of a passport and the conditions under which the child could travel overseas with either parent.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility for the child [X] born [in] 2004.

That the said child live with each of his parents for equal periods of time as follows:

(a) Order 3(d) of the Orders made 4th October 2007 shall continue until the commencement of school in 2010;

(b) On a week about basis each Friday after school or 3.00pm if not a school day to commence Friday 29th January 2010 with the Father;

(c) With the Father for the first half of the Easter public holidays/school holidays and the June/July and September/October school holidays and the Christmas school holidays in odd numbered years and the second half in even numbered years;

(d) With the Mother for the second half of the holidays referred to in 2.3 hereof in odd numbered years and the first half in even numbered years;

(e) Christmas Day will be spent with the parent having the first half of the Christmas school holiday period.

(f) That the Father spend time with the child on the Father’s Day weekend from 5.00pm Friday until 5.00pm Sunday;

(g) That the Mother spend time with the child on the Mother’s Day weekend from 5.00pm Friday until 5.00pm Sunday;

(h) That each parent be at liberty to telephone the child when in the other parent’s care on Sunday and Wednesday at 6.30pm;

(i) That the child spend time with each parent on their respective birthday from 9.00am to 5.00pm save that the parents shall forgo time on their birthday when exercising time pursuant to 2.3 hereof;

(j) That the parent who would not otherwise have the child on his birthday pursuant to these Orders shall spend time with him from 4.00pm to 8.30pm.

(k) That the week about arrangement referred to in 2.2 hereof shall be suspended during holiday time referred to in 2.3 and 2.4.

That changeover shall occur at the child’s school if a school day and at the home of the parent who has had the child if not a school day.

That the child commence his primary school education in 2010 commencing at Prep School or Grade 1 (as agreed between the parents) at the [N] College but in the event he is unable to attend such school then [B] School.

That both parents shall inform the other of any significant events in the child’s life and both parents shall notify the other immediately in the case of an emergency concerning the child.

That both parents keep the other informed of their respective residential address and contact telephone number (either a land line, mobile telephone or both if parents have both connected) and shall advise the other parent within 48 hours of any change occurring.

That this order operates as an authority for any professional care provider of the child (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child to both parents. Should either parent seek any documentation in relation to the child (including but not limited to school notices, school reports , school photograph order forms and medical and other professional reports ), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.

That both parents be at liberty to attend parent teacher interviews and all other activities which a parent would ordinarily attend at school.

That both parents keep the other informed of any medical and or other professional treating the child.

10.

That all previous orders relating to the said child be discharged save for Order 3(d) of the Orders made 4th October 2007 which is discharged as and from the commencement of school in 2010.

11.

That the Mother establish a Communication Booklet to pass with the said child at changeover at all times to be utilised by the parties for the health and welfare of the said child and for no other purpose provided such Communication Booklet remain intact.

OVERSEAS AND INTERSTATE TRAVEL

12.

That the Mother and Father do all acts and things and sign all documents necessary to enable the mother to obtain a passport for the said child and once the Mother receives the duly executed passport for the said child, she deposit the passport with the Family Court within forty-eight (48) hours of it being issued provided that the costs associated with obtaining such passport be shared equally between the parents.

13.

That each parent be at liberty to travel with the said child overseas conditionally upon:

(a) Each parent cooperating with the other and on request to deliver or execute any other document necessary to facilitate the said child’s travel including but not limited to the said child’s passport, immunisation records, Birth Certificate and the like;

(b) The travelling parent provide to the other parent not less than three (3) months’ written notice of his/her intention to travel overseas with the said child and the country they intend to travel with the said child;

(c) The travelling parent providing the other parent with proof of prepaid return flights, a copy of his/her itinerary, including but not limited to departure and return times and dates, flight details, contact telephone numbers for the travelling parent and the said child and at the address which he/she will predominately be based not less than one (1) month prior to the schedule departure date for overseas travel;

(d) Whilst the said child is travelling overseas, the travelling parent facilitate telephone communication at all reasonable times but not less than one occasion per week, on a day and time as agreed between the parties;

(e) The return of the said child’s passport to the Family Court within seven (7) days of completed travel.

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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