FINE & EDDINGTON - [2013] FCCA 1313

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINE & EDDINGTON

[2013] FCCA 1313

Catchwords:
FAMILY LAW – Parenting – child almost aged 5 years old – week about arrangement has been in place since March 2011 – whether or not the week about arrangement should be changed.

Legislation:
Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC, 60DA, 61DA, 64, 65D, 65DAA

Goode & Goode [2006] FamCA 1346
MRR & GR [2010] HCA 4
Akston & Boyle [2010] FamCAFC 56
Korban & Korban [2008] FamCA 292
SCVG & KLD [2010] FMCAfam 641
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

Applicant:

MS FINE

Respondent:

MR EDDINGTON

File Number:

DNC 252 of 2012

Judgment of:

Judge Harland

Hearing date:

15 July 2013

Date of Last Submission:

15 July 2013

Delivered at:

Darwin

Delivered on:

11 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Barry

Solicitors for the Applicant:

Cecil Black Family Lawyers

Counsel for the Respondent:

Ms Farmer

Solicitors for the Respondent:

Withnalls Lawyers

ORDERS

That the parties have equal shared parental responsibility for X born (omitted) 2008 (“the child”).
That during the school terms the mother and father have equal shared care of the child as follows:
(a)Week 1 – with the father from Friday after day-care or school to before day-care or school the following Friday; and
(b)Week 2 – with the mother from Friday before day-care to after day-care the following Friday.
That during the school holidays the child spend the following times with the parties:
(a)With the father in the April/May school holidays in even numbered years;
(b)With the mother in the April/May school holidays in odd numbered years;
(c)With the father for the second half of the midyear and Christmas school holidays commencing 2013 and in each alternate year thereafter;
(d)With the father for the first half of the midyear and Christmas school holidays commencing 2014 and in each alternate year thereafter;
(e)With the mother for the first half of the midyear and Christmas school holidays commencing in 2013 and each alternate year thereafter;
(f)With the mother for the second half of the midyear and Christmas school holidays commencing 2014 and each alternate year thereafter;
(g)With the father in the September/October school holidays in odd numbered years;
(h)With the mother in the September/October school holidays in even numbered years.
That for the purposes of calculating the period of school holidays, the school holidays commence on the last day of the school semester and conclude on the first day of the following school semester.
That orders 2 and 3 be suspended to give effect to the following special days:
(a)That in the event the child is not living with the mother on Mother’s Day that the mother spend time with the child from 8am to before day-care/school the following Monday;
(b)That in the event the child is not living with the father on Father’s Day that the father spend time with the child from 8.00am…

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 FINE & EDDINGTON

Details

AGLC: FINE & EDDINGTON [2013] FCCA 1313
Case: [2013] FCCA 1313
Decision Date: 11 September 2013

CaseChat Overview and Summary

This matter concerned an application for parenting orders between the mother and father of X, born in 2008. The court was required to determine the arrangements for the child's care and contact with each parent.

The court was asked to make orders regarding equal shared parental responsibility, the specific times the child would spend with each parent during school terms and school holidays, and provisions for special days such as birthdays and Easter. Further issues included the location of changeovers, communication between parents and the child, notification of emergencies, and arrangements for passports and access to school and professional reports. The court also considered orders relating to interstate and overseas travel, an injunction against denigrating the other parent, and the completion of a parenting program.

The court made orders by consent of the parties. It ordered equal shared parental responsibility for the child. The primary orders established a two-week rotating care schedule during school terms, with the child spending one week with the father and the following week with the mother. Detailed provisions were made for the division of time during school holidays, including specific arrangements for April/May, midyear, Christmas, and September/October holidays, with alternating arrangements in even and odd-numbered years. The court also made specific orders for special days, including Mother's Day, Father's Day, birthdays, and Easter, which were to suspend the general care arrangements. Further orders addressed changeover locations, communication rights, notification of emergencies, passport issuance, and the right of each parent to obtain information regarding the child's education and welfare. An injunction was granted restraining the parents from denigrating each other in the child's presence. Finally, the parties were ordered to undertake and complete a parenting program, with certified copies of completion to be provided to the other parent.

Orders

Orders of the court

That the parties have equal shared parental responsibility for X born (omitted) 2008 (“the child”).

That during the school terms the mother and father have equal shared care of the child as follows:

(a) Week 1 – with the father from Friday after day-care or school to before day-care or school the following Friday; and

(b) Week 2 – with the mother from Friday before day-care to after day-care the following Friday.

That during the school holidays the child spend the following times with the parties:

(a) With the father in the April/May school holidays in even numbered years;

(b) With the mother in the April/May school holidays in odd numbered years;

(c) With the father for the second half of the midyear and Christmas school holidays commencing 2013 and in each alternate year thereafter;

(d) With the father for the first half of the midyear and Christmas school holidays commencing 2014 and in each alternate year thereafter;

(e) With the mother for the first half of the midyear and Christmas school holidays commencing in 2013 and each alternate year thereafter;

(f) With the mother for the second half of the midyear and Christmas school holidays commencing 2014 and each alternate year thereafter;

(g) With the father in the September/October school holidays in odd numbered years;

(h) With the mother in the September/October school holidays in even numbered years.

That for the purposes of calculating the period of school holidays, the school holidays commence on the last day of the school semester and conclude on the first day of the following school semester.

That orders 2 and 3 be suspended to give effect to the following special days:

(a) That in the event the child is not living with the mother on Mother’s Day that the mother spend time with the child from 8am to before day-care/school the following Monday;

(b) That in the event the child is not living with the father on Father’s Day that the father spend time with the child from 8.00am to before day-care/school the following Monday;

(c) That in the event the child is not living with the mother on the mother’s birthday that the mother spend time with the child from 8.00am to 5.00pm on that day;

(d) That in the event the child no living with the father on the father’s birthday that the father spend time with the child from 8am to 5pm on that day;

(e) With the father for the first half of Easter being from after day-care/school Easter Thursday to 5.00pm Easter Saturday in odd numbered years;

(f) With the mother for the second half of Easter being from 5.00pm Easter Saturday to before day-care/school the following Tuesday in even numbered years;

(g) With the father for the second half of Easter being from 5.00pm Easter Saturday to before day-care/school the following Tuesday in odd numbered years;

(h) With the mother for the first half of Easter being from after day-care/school Easter Thursday to 5.00pm Easter Saturday in even numbered years;

That all changeovers occur at the child’s day-care/school or in the event at McDonalds in (omitted) on a public holiday, pupil free day or during the school holidays or as otherwise agreed between the parties.

That the parent with whom the child is not living with be at liberty to telephone the child at all reasonable times and the parent with whom the child is living with shall facilitate such communication.

That both parties advise the other of any medical or other emergency in relation to the child as soon as practicable.

That both parties shall do all such acts and things and sign all necessary documents as required to facilitate the issuing of the passports for the child.

10.

That each parent be entitled to obtain directly from any school attended by the child, or from any health welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.

11.

That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advise the other parent of that change.

12.

That the parties shall be entitled to take the child interstate or overseas on holidays provided the other party is notified 30 days at least in advance and provides an itinerary with address and phone numbers where the child will be holidaying.

13.

That the parents are hereby restrained and an injunction is hereby granted restraining the parents from denigrating each other within the hearing or presence of the child or allowing anyone else to do so.

14.

That pursuant to section 13C of the Family Law Act 1975 the parents undertake and complete the ‘For the Kids’ parenting program at (omitted) as follows:

(a) Each parent, within seven (7) days of the date of these Orders, are to contact (omitted) on (omitted) to enrol in the parenting program;

(b) The parents are to attend all sessions and comply with all reasonable directions of the program providers;

(c) At the conclusion of the program each parent shall provide the other parent with a certified copy of the certificate of completion.

15.

That pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.

NOTATION

A. That orders (1), (3), (5), (7) – (13) are made by consent.

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.