FERN & FERN - [2012] FamCA 545

FAMILY COURT OF AUSTRALIA

FERN & FERN

[2012] FamCA 545

FAMILY LAW - CHILDREN - PARENTAL RESPONSIBILITY – Where the parents have equal shared parental responsibility – where the mother seeks sole parental responsibility over children’s religion – The Court cannot prefer one religion over another - Morrison & Morrison (1995) FLC 92-639 distinguished - no orders as to allocation of parental responsibility as to religion - where Mother is of the Anglican Church and Father is of the Roman Catholic Faith

FAMILY LAW - CHILDREN – With whom the Child spends time – midweek and holiday time – where mid-week time remains unchanged so as to ensure stability for children – where holiday time is allocated so as to ensure the children are not absent from the care of either parent for longer periods

Barry & Scott [2011] FamCA 205
Hunt & Theophane [2011] FamCA 205
Morrison & Morrison (1995) FLC 92-639

Family Law Act 1975 (Cth) s 65DA and s 62B

APPLICANT:

Ms Fern

RESPONDENT:

Mr Fern

FILE NUMBER:

NCC

911

2011

DATE DELIVERED:

19 July 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

20 & 21 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tregilgas

SOLICITOR FOR THE APPLICANT:

MRM Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Galloway Family Law

Orders

That all previous parenting orders made to date are discharged.
That the parents shall have equal shared responsibility for the children L born … February 2001 and N born … November 2003 (together known as “the children”).
That the children shall live with the father at times set out herein (unless the parties agree to other and/or additional times) and shall at all other times live with the mother
3.1During school terms:
3.1.1in each alternate week from after school Thursday to before school Monday (extending to before school Tuesday if Monday is a public holiday) AND
3.1.2in the other week from after school Thursday to before school Friday.
3.2Order 3.1 shall be suspended from after school on the last day of each school term and resume during the next term as follows:
3.2.1Order 3.1.1 shall resume on the first Thursday of term when the children have been in the father’s care during the first week of the holidays; and
3.2.2Order 3.1.2 shall resume on the first Thursday of term when the children have been in the father’s care during the second week of the holidays.
3.3During school term holiday periods as follows:
3.3.1for the holidays at the conclusion of Terms 1 and 3, for a period of one week commencing in even numbered years at 8.00 am on the first Saturday of the holiday period and concluding at 5.00 pm on the second Saturday of that period; and
3.3.2in odd numbered years from 8.00 am on the second Saturday of the period and concluding at 5.00 pm on the third Saturday of that period.
3.4For the 3 week holiday period at the conclusion of Term…

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

AGLC: FERN & FERN [2012] FamCA 545
Case: [2012] FamCA 545
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard competing applications for parenting orders concerning two children, L and N. The dispute primarily concerned the allocation of parental responsibility, particularly regarding the children's religious upbringing, and the specific arrangements for midweek and holiday time spent with each parent. The mother sought sole parental responsibility for religious instruction, while the father sought equal shared parental responsibility in all respects.

The court was required to determine whether to grant the mother sole parental responsibility for the children's religious instruction, or to maintain equal shared parental responsibility as sought by the father. Additionally, the court needed to establish the specific arrangements for the children's midweek time with each parent and to define the holiday periods each parent would have care of the children. The court also considered whether to make orders regarding the children's attendance at religious services, given the mother's Anglican faith and the father's Roman Catholic faith.

Cleary J held that the court could not prefer one religion over another and that there was no basis for making orders that would interfere with the children's religious upbringing. The judge noted that both parents were committed to a religious upbringing for the children within the Anglican Church, and that the father's inclusion of the children in his own Catholic practice did not constitute an attempt to subvert their Anglican upbringing. The court distinguished the present case from *Morrison & Morrison* (1995) FLC 92-639, finding no evidence of dogmatism or dismissiveness of one parent's views by the other. Consequently, no specific orders were made regarding religious instruction, as the existing parental agreement and commitment to the Anglican Church were deemed sufficient. The court also made orders for midweek and holiday time, aiming to ensure stability for the children and to prevent prolonged absences from either parent's care.

The court discharged all previous parenting orders and made new orders for equal shared parental responsibility for the children. The children were to live with the father during specified periods, including alternate weekends from Thursday to Monday and one night in the other week during school terms, with detailed provisions for holiday periods. Specific arrangements were also made for the children to spend time with the parent they would not normally be with on their birthdays, Mother's Day, Father's Day, and Easter Sunday. The court also outlined the procedures for changeovers between parents.

Orders