Ford and Pelly - [2010] FMCAfam 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORD & PELLY

[2010] FMCAfam 228

FAMILY LAW – Equal shared parental responsibility – equal time or substantial and significant time – Family Report – meaningful relationship – neglect – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations.

Family Law Act 1975, ss.60CA, 60CC, 61B, 61DA, 62B, 64B, 65DA, 65DAA
Federal Magistrates Court Rules 2001, r.21.15

In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713
In the Marriage of Harris (1977) 29 FLR 285; (1977) Fam LN No 33; (1977) FLC 90-276
In the Marriage of Wood (1976) 11 ALR 657; (1976) 27 FLR 1; (1976) 2 Fam LR 11,182; (1976) FLC 90-098
Lindell & Ranteri [2010] FamCA 52

Applicant:

MS FORD

Respondent:

MR PELLY

File Number:

WOC 534 of 2008

Judgment of:

Monahan FM

Hearing date:

25 August 2009

Date of Last Submission:

17 December 2009

Delivered at:

Sydney

Delivered on:

27 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr Steward

Solicitors for the Applicant:

R & M Legal Solicitors & Attorneys

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Verekers Lawyers

ORDERS

All previous parenting orders be discharged.
The parties, MS FORD (“the mother”) and MR PELLY (“the father”), have equal shared parental responsibility for their children, [X] born [in] 1998 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2004 (“[Z]”) (collectively “the children”).
With effect from the end of the second term of the 2010 school year (Friday, 2 July 2010), and subject to paragraph 4 herein in respect of [Z] only, the children live with each of the parties on a shared basis, namely ‘week about’ from the end of school on Friday (or 3.30pm if not a school day) until the commencement of school the following Friday (or 9.00am if not a school day), with the children to live with the mother in the first such week and with the father in the second week and rotating weekly thereafter. For the avoidance of doubt this arrangement continues throughout mid-year school holiday periods (“mid-year holidays”) but be suspended during part of the annual end-of-year summer school holidays (“the summer holidays”), at which time the arrangements set out in paragraph 8 herein shall apply.
Failing agreement between the parties to the contrary and subject to paragraph 3 herein, during all school terms (but not during mid-year holidays or the summer holidays), [Z] shall spend time from the end of school Monday (or 3.30pm if not a school day) until commencement of school Wednesday (or 9.00am if not a school day) with the party that she would not otherwise be living with (“the specified period”). For the avoidance of doubt, this special arrangement means that [Z] spends the specified period with the mother during the time she would be living with the father, and spends the specified period with the father during the time she would be living…

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 Ford and Pelly

Details

AGLC: Ford and Pelly [2010] FMCAfam 228
Case: [2010] FMCAfam 228
Decision Date: 27 May 2010

CaseChat Overview and Summary

The case of Ford and Pelly involves a dispute between MS Ford and MR Pelly, who are the parents of three children. The primary issue before the court was the determination of parenting arrangements following the dissolution of their relationship. The court was tasked with deciding the allocation of parental responsibility, the living arrangements, and the specific details of time-sharing schedules for the children. Additionally, the court addressed issues regarding communication between the parents and the children, as well as broader parenting directives to ensure the children's welfare.

The court considered the welfare and best interests of the children as the paramount concern in making its decisions. It determined that both parents should have equal shared parental responsibility for the children, acknowledging the importance of both parents being involved in significant decision-making about the children's lives. The court outlined a detailed 'week about' time-sharing arrangement, with specific provisions for the children's living arrangements during school terms, mid-year holidays, and summer holidays. It also included special arrangements for the youngest child, [Z], during school terms. Furthermore, the court provided specific instructions for the children's time-sharing during significant family days such as Mother’s Day, Father’s Day, and birthdays. The court further mandated that the parents facilitate communication between the children and the other parent, and imposed restrictions on smoking, alcohol consumption, and corporal punishment to ensure a healthy environment for the children.

The court's reasoning was grounded in the principle of promoting the children's best interests, ensuring their welfare, and facilitating a positive and supportive relationship between the parents and the children. By establishing clear and structured parenting orders, the court aimed to provide stability and predictability for the children while allowing both parents to maintain an active role in their lives. The final orders, as outlined in the decision, discharge all previous parenting orders and set forth new detailed arrangements for parental responsibility, time-sharing, and other parenting directives to govern the parents' interactions and responsibilities.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties, MS FORD (“the mother”) and MR PELLY (“the father”), have equal shared parental responsibility for their children, [X] born [in] 1998 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2004 (“[Z]”) (collectively “the children”).

With effect from the end of the second term of the 2010 school year (Friday, 2 July 2010), and subject to paragraph 4 herein in respect of [Z] only, the children live with each of the parties on a shared basis, namely ‘week about’ from the end of school on Friday (or 3.30pm if not a school day) until the commencement of school the following Friday (or 9.00am if not a school day), with the children to live with the mother in the first such week and with the father in the second week and rotating weekly thereafter. For the avoidance of doubt this arrangement continues throughout mid-year school holiday periods (“mid-year holidays”) but be suspended during part of the annual end-of-year summer school holidays (“the summer holidays”), at which time the arrangements set out in paragraph 8 herein shall apply.

Failing agreement between the parties to the contrary and subject to paragraph 3 herein, during all school terms (but not during mid-year holidays or the summer holidays), [Z] shall spend time from the end of school Monday (or 3.30pm if not a school day) until commencement of school Wednesday (or 9.00am if not a school day) with the party that she would not otherwise be living with (“the specified period”). For the avoidance of doubt, this special arrangement means that [Z] spends the specified period with the mother during the time she would be living with the father, and spends the specified period with the father during the time she would be living with the mother. This special arrangement for [Z] shall cease at such time as agreed between the parties and failing agreement on 14 December 2011.

If the children would ordinarily be in the care of the father on Mother’s Day, then the husband’s time be suspended from 10.00am until 6.00pm on Mother’s Day and the children spend that time with the mother.

If the children would ordinarily be in the care of the mother on Father’s Day, then the mother’s time be suspended from 10.00am until 6.00pm on Father’s Day and the children spend that time with the father.

The party who would not otherwise have the children living with him/her on the occasion of each of the children’s birthdays, spend time with the children on those birthdays as follows:

(a) if a non-school day, in default of agreement from 10.00am to 6.00pm; and

(b) if a school day, in default of agreement from 3.30pm until 7.30pm

with the children to remain in the care of the party who would otherwise have the children residing with him/her for the remainder of the children’s birthdays.

During the summer holidays the arrangements provided for in paragraphs 3 and 4 herein be suspended as follows:

(a) subject to paragraph 8(e), the children live with mother for two weeks on and from the last day of school in 2010 (Friday, 17 December 2010) and for two weeks on and from the last day of school in each alternate year thereafter;

(b)

subject to paragraph 8(e), the children live with the father for two weeks on and from the last day of school in 2011 (Tuesday,

20 December 2011) and for two weeks on and from the last day of school in each alternate year thereafter;

(c) subject to paragraph 8(f) the children live with the father for two weeks on and from the date two weeks immediately after the last day of school in 2010 (Friday, 31 December 2010) and for two weeks on and from the date two weeks immediately after the last day of school in each alternate year thereafter;

(d) subject to paragraph 8(f), the children live with the mother for two weeks on and from the date two weeks immediately after the last day of school in 2011 (Tuesday, 3 January 2012) and for two weeks on and from the date two weeks immediately after the last day of school in each alternate year thereafter;

(e) the arrangements provided for in paragraphs 8(a) and 8(b) herein be suspended from 10.00am until 6:00pm on 25 December in each year to enable the children to spend time with the party that they are not living with on that day as a consequence of these orders; and

(f) in the event that the last day of school in any year (such as 2011) does not occur on a Friday, then the period applicable to the party whom the children are living with pursuant to paragraphs 8(b) and 8(d) herein shall be extended to the next Friday to enable the ‘week about’ arrangements in paragraph 3 to recommence.

On school days, all changeovers occur at the children’s school(s) and on non-school days, all changeovers occur at a place as agreed between the parties or, failing agreement, at the home of the party that the children have been living with in the preceding week.

10.

The parent with whom the children are residing at any particular times do all things required to facilitate the children communicating with the other parent by telephone and / or internet technology at all reasonable times and, failing agreement as to when such communication takes place, each day between 7.00pm and 7.30pm.

11.

Each party facilitate the children’s reasonable requests to telephone, SMS or email the other party should either child wish to communicate with the other party at times other than those provided for in paragraph 10 herein.

12.

Each party provide the other party with all relevant telephone numbers and email addresses within 24 hours of the date of these orders and within 24 hours of any change to any or all of those details.

13.

Both parties by themselves, their servants and agents be and are hereby restrained from denigrating or disparaging the other party to or within the hearing or presence of the children.

14.

Each party be permitted to attend the children’s school, sporting and extra-curricular functions irrespective of whether they occur when the children are residing with them.

15.

Each party keep the other party informed about all of the children’s activities and their health, education and general development by the use of a communications book (or electronic equivalent) and inform the other parent as soon as is reasonably practicable (and no later than 3 hours after becoming aware) of any medical or health emergency involving the children or either of them.

16.

Each party keep the other party informed about their respective residential addresses and particulars of others who may reside with the children and inform the other party within 24 hours of any change to any or all of those details.

17.

Each party irrevocably authorise the children’s school(s) and treating medical and dental practitioner(s) to disclose to the other parent all and any information reasonably requested of such school(s) and medical and dental practitioner(s) in relation to the children.

18.

Neither party smoke cigarettes in the presence of any or all of the children and both parties ensure that no other person smokes cigarettes whilst in the presence of any of the children whilst any or all of the children are living with them.

19.

Neither party consume alcohol within 12 hours before living with, or spending time with, any of the children and neither party consume alcohol whilst any of the children are in their care if that consumption results in a blood alcohol content exceeding 0.05 percent.

20.

Each party refrain from using corporal punishment on any or all of the children.

21.

Pursuant to section 13C of the Family Law Act 1975 the parties:

(a) attend and complete, as soon as practicable, a post separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, at Relationships Australia;

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

(d) provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor

and the Court notes that the purpose of this order is to assist the parties to develop the ability to communicate with each other directly.

22.

All extant applications be otherwise dismissed.

23.

Pursuant to rule 21.15 of the

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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