FOWLER & FOWLER - [2015] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOWLER & FOWLER

[2015] FCCA 1682

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – discharge of earlier interim orders – court expert – expert report – recommendations – best interests of the children – wishes of the children – weight to be given – parental responsibility – equal shared parental responsibility – equal time with each parent – consideration whether equal time would be in children’s best interests – whether equal time reasonably practicable – supervision – no further need for supervision – where children are to live with each parent in an equal time arrangement on a week about basis.

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

Cases cited:
Fowler & Fowler [2014] FCCA 2974
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR FOWLER

Respondent:

MS FOWLER

File Number:

SYC 6064 of 2014

Judgment of:

Judge Scarlett

Hearing date:

15 May 2015

Date of Last Submission:

15 May 2015

Delivered at:

Sydney

Delivered on:

17 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Macpherson

Solicitors for the Applicant:

Warren McKeon Dickson Lawyers

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

MCW Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Loumis

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Campbelltown

ORDERS

The Orders made on 18 December 2014 are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.
The father is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with him in accordance with these Orders.
The mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with her in accordance with these Orders.
The children X and Y are to live with each of the parties during the school term and the Autumn, Winter and Spring school holidays as follows:
(a)Commencing on Friday 19 June 2015 with the mother from immediately after school on the Friday of the first week of the fortnight during the school term until the commencement of school the following Friday; and
(b)With the father from immediately after school on the Friday of the second week of the fortnight during the school term until the commencement of school or 3:00 pm the following Friday.
During the December/January school holiday period the children will live with the father for the first half of the school holiday period excluding Christmas Eve, Christmas Day and Boxing Day, which days are the subject of following Orders, and with the mother for the second half of the school holiday period commencing at 3:00 pm on the middle Friday
Notwithstanding the provisions of the immediately preceding Orders, the…

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 FOWLER & FOWLER

Details

AGLC: Fowler and Fowler [2015] FCCA 1682
Case: [2015] FCCA 1682
Decision Date: 17 June 2015

CaseChat Overview and Summary

This matter concerned an application before Judge Scarlett concerning the parental responsibility and living arrangements for two children, X and Y. The applicant father and respondent mother sought orders regarding the children's care and welfare.

The court was required to determine the appropriate orders for equal shared parental responsibility, the specific living arrangements for the children during school terms and holidays, and provisions for communication and decision-making regarding the children's day-to-day care, welfare, and development. Further issues included the children's schooling, the parties' engagement with counselling and specific programs, and restrictions on alcohol and drug consumption, physical discipline, and denigration of the other parent.

Judge Scarlett made orders discharging previous arrangements and establishing equal shared parental responsibility for the children. The court detailed a specific schedule for the children to live with each parent during school terms and various holiday periods, including Christmas and birthdays, with provisions for alternating holiday periods. The orders also stipulated that each parent would have sole responsibility for day-to-day decisions concerning the children while they were in their care. Additionally, the court imposed restrictions on the parties' communication with the children when not in their care, mandated continued attendance at the children's current school, required engagement with counselling and a specific program, and prohibited excessive alcohol consumption, illicit drug use, physical discipline, and denigration of the other parent in the children's presence. The application was adjourned for further mention.

Orders

Orders of the court

The Orders made on 18 December 2014 are discharged.

The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.

The father is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with him in accordance with these Orders.

The mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the children X and Y whilst the children are living with her in accordance with these Orders.

The children X and Y are to live with each of the parties during the school term and the Autumn, Winter and Spring school holidays as follows:

(a) Commencing on Friday 19 June 2015 with the mother from immediately after school on the Friday of the first week of the fortnight during the school term until the commencement of school the following Friday; and

(b) With the father from immediately after school on the Friday of the second week of the fortnight during the school term until the commencement of school or 3:00 pm the following Friday.

During the December/January school holiday period the children will live with the father for the first half of the school holiday period excluding Christmas Eve, Christmas Day and Boxing Day, which days are the subject of following Orders, and with the mother for the second half of the school holiday period commencing at 3:00 pm on the middle Friday

Notwithstanding the provisions of the immediately preceding Orders, the children X and Y will otherwise live with the father as follows:

(a) In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;

(b) In 2016 and all even numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;

(c) On the father’s birthday being (omitted) if the children are otherwise in the care of the mother on that day then from immediately after school until the commencement of school the following day;

(d) if Father’s Day falls on a weekend when the children are otherwise in the care of the mother then from immediately after school on the Friday immediately before Fathers’ Day until the commencement of school on the following Monday; and

(e) At such other times as the parties shall agree.

Notwithstanding the provisions of the preceding Orders the children will otherwise live with the mother as follows:

(a) In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;

(b) In 2016 and all even numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;

(c) On the mother’s birthday being (omitted) if the children are otherwise in the care of the father on that day then from immediately after school until the commencement of school the following day;

(d) If Mothers’ Day falls on a weekend when the children are otherwise in the care of the father then from immediately after school on the Friday before Mothers’ Day until the commencement of school on the following Monday; and

(e) At such other times as the parties shall agree.

Changeover between the parties where the children are to go from the care of one party to the care of the other will take place at the children’s school if on a school day or otherwise at the residences of the parties.

10.

The parties must keep each other informed of their current residential address, telephone numbers and email address and notify each other of any change within seven (7) days of such change occurring.

11.

The parties are to have telephone contact with the children when the children are not living with them:

(a) No more than once per day;

(b) No later than 7:30 pm; and each party must do all things necessary to facilitate the children being able to take the call from the other party.

12.

Except as provided in the immediately preceding Order the parties are restrained from communicating with the children whilst the children are in the care of the other party by SMS, telephone text message, Facetime, email or any other form of electronic communication.

13.

The parties must do all acts and things necessary to continue the attendance of the children X and Y at the (omitted) Primary School at (omitted) and are restrained from doing any act or thing to remove either or both of the children from the said school without the written consent of the other party or leave of the Court first had and obtained until each child completes her or his primary education.

14.

Both parties are to continue to engage with their current counsellors.

15.

Within seven (7) days of the date of these Orders the parties must contact UNIFAM Sydney on (omitted) to enrol for intake to attend the “Keeping in Contact” program and participate in such program up to completion including but not limited to completing all courses and accepting and following up on all referrals as recommended by UNIFAM.

16.

The parties are restrained from consuming alcohol to excess at any time when the children are in their care or for twelve (12) hours beforehand.

17.

The parties are restrained from administering to themselves any illicit drug at any time when the children are in their care or for twelve (12) hours beforehand.

18.

The parties are restrained from using any form of physical discipline or corporal punishment on either of the children.

19.

The parties are restrained from abusing, criticising or denigrating the other party in the presence or hearing of the children or permitting any third person to do so.

20.

The Application is adjourned to 7 July 2015 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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.