French and Winter (No.2) - [2012] FMCAfam 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRENCH & WINTER (No.2)

[2012] FMCAfam 386

FAMILY LAW – Parenting – final orders – the willingness and ability of the mother to foster a relationship between the children and the father.

Family Law Act 1975, ss.60CC, 65DAA(5)

Applicant:

MR FRENCH

Respondent:

MS WINTER

File Number:

BRC 7013 of 2010

Judgment of:

Demack FM

Hearing date:

20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Brisbane

Delivered on:

26 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

KL King & Associates

Solicitors for the Respondent:

Charles Cooper Lawyers

ORDERS BY CONSENT

That both parents have equal shared parental responsibility for the major long term decisions of the children X born (omitted) 2001 and Y (omitted) 2002 (“the children”).

ORDERS

That all previous Parenting Plans and Orders be discharged.
That the children live with the father.
That to effect the change of residence referred to in Order 3 hereof, changeover shall be at a time and place as agreed between the parents in writing and failing agreement at 12.00pm on Saturday 28 April 2012 at a public place at (omitted) as nominated by the father.
That the children spend time with and communicate with the mother at all reasonable times as agreed between the parents in writing and failing agreement, as follows:
(a)From after school Thursday (or 3.00pm in the event the children are not at school) through to before school Monday (or 9.00am in the event children are not at school) commencing Thursday 10 May 2012 and each alternate week thereafter and in the event Monday is a public holiday or pupil free day, such time is to conclude before school on Tuesday (or 9.00am in the event the children are not at school); and
(b)By telephone between 6.30pm and 7.30pm commencing Monday 21 May 2012 and each alternate Monday thereafter with the father to cause the children to initiate the call.
That the children spend time with each parent during school holidays at all times as agreed between the parents in writing and failing agreement, as follows:
(a)In even numbered years:
(i)For the first half with the mother and the second half with the father.
(b)In odd numbered years:
(i)For the first half with the father and the second half with the mother.
(c)That school holidays shall be calculated as follows:
(i)Where there is an even number of days in any school holiday period the handover is to occur at 9.00am on the morning of the first day of the second half of the holiday period;
(ii)Where there is an odd number of days in any school holiday period the handover is to occur at 9.00am on the morning of the middle day of that school holiday period;
(iii)For the purposes of calculating the number of days in a holiday period the first day after the break up of school is to be regarded as ‘day 1’ and the day before the day the youngest…

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 French and Winter (No.2)

Details

AGLC: French and Winter (No.2) [2012] FMCAfam 386
Case: [2012] FMCAfam 386
Decision Date: 26 April 2012

CaseChat Overview and Summary

In the case of French and Winter (No. 2), the parties were engaged in a complex dispute concerning the care, welfare, and development of their children. The Family Court of Australia was tasked with resolving the dispute and issuing orders that would govern the children's living arrangements, visitation schedules, and other significant aspects of their lives.

The primary legal issues before the court involved determining the most appropriate living arrangements for the children, establishing a visitation schedule that balanced the needs and rights of both parents, and setting out detailed guidelines for the parents to follow in order to ensure the children's well-being. The court also had to address the parents' ability to travel overseas with the children and the process for resolving any future disputes about the care, welfare, and development of the children.

The court considered the best interests of the children as the paramount concern in making its decisions. It concluded that the children should primarily reside with the father but would have regular and substantial contact with the mother. The court set out detailed provisions for the children's living arrangements, visitation schedules, and special occasions, aiming to provide stability and consistency in the children's lives. The court also established a process for resolving future disputes, emphasizing the importance of communication, negotiation, and family dispute resolution. The orders issued by the court were designed to promote the children's best interests and to provide a clear and practical framework for the parents to follow.

Orders

Orders of the court

That all previous Parenting Plans and Orders be discharged.

That the children live with the father.

That to effect the change of residence referred to in Order 3 hereof, changeover shall be at a time and place as agreed between the parents in writing and failing agreement at 12.00pm on Saturday 28 April 2012 at a public place at (omitted) as nominated by the father.

That the children spend time with and communicate with the mother at all reasonable times as agreed between the parents in writing and failing agreement, as follows:

(a) From after school Thursday (or 3.00pm in the event the children are not at school) through to before school Monday (or 9.00am in the event children are not at school) commencing Thursday 10 May 2012 and each alternate week thereafter and in the event Monday is a public holiday or pupil free day, such time is to conclude before school on Tuesday (or 9.00am in the event the children are not at school); and

(b) By telephone between 6.30pm and 7.30pm commencing Monday 21 May 2012 and each alternate Monday thereafter with the father to cause the children to initiate the call.

That the children spend time with each parent during school holidays at all times as agreed between the parents in writing and failing agreement, as follows:

(a) In even numbered years:

(i) For the first half with the mother and the second half with the father.

(b) In odd numbered years:

(i) For the first half with the father and the second half with the mother.

(i) Where there is an even number of days in any school holiday period the handover is to occur at 9.00am on the morning of the first day of the second half of the holiday period;

(ii) Where there is an odd number of days in any school holiday period the handover is to occur at 9.00am on the morning of the middle day of that school holiday period;

(iii) For the purposes of calculating the number of days in a holiday period the first day after the break up of school is to be regarded as ‘day 1’ and the day before the day the youngest child recommences school is to be regarded as ‘the final day’;

(iv) 2012 is to be regarded as an ‘even’ year, 2013 an ‘odd’ year and so on.

That the children spend time with each parent on all special occasions as agreed between the parents in writing and failing agreement, as follows:

(a) On Mother’s Day:

(i) That in the event the children are not otherwise spending time with the mother on that day, the children spend time with the mother from 9.00am to 6.00pm on Mother’s Day.

(b) On Father’s Day:

(i) That in the event the children are not otherwise spending time with the father on that day, the children spend time with the father from 9.00am to 6.00pm on Father’s Day.

(i) That on the birthday of both children, the parent with whom the children are not presently with shall spend time with both children:

A. If a school day from after school to 6.00pm;

B. If a non school day from 1.00pm to 6.00pm.

(d) Parent’s birthdays:

(i) That on the birthday of a parent with whom the children are not presently spending time with shall spend time with both children :

A. If a school day from after school to 6.00pm; and

B. If a non school day from 1.00pm to 6.00pm.

That all changeovers that are not otherwise specified in these Orders shall occur at the children’s school/s and in the event it can not occur at the school/s, changeover is to occur at a public place as nominated by the father.

That on any occasion the parents are to collect the children, the children may be collected by any family member nominated by the other parent for that purpose, and neither parent shall have any right to enquire as to that nomination nor refuse to deliver the children to the nominated person.

10.

That to avoid confusion the parents and/or any member of the parent’s extended family shall be entitled to attend any appropriate event at the children’s schools or extra-curricular activities including parents’ days, grandparents’ days and sport and special events.

11.

That this Order shall act as an authority for both parents to obtain information about the children from the children’s school/s, doctors, tutors and any other persons whom the children attend upon to discuss the children’s progress or involvement with those persons/entities, and to provide copies or any documents including reports, progress notes, etc.

12.

That either parent shall be permitted to travel overseas with the children on holidays during the periods of time that the children are living or spending time with that parent (or more by agreement in writing) subject to the following conditions:

(a) The parent wishing to travel shall provide advance written notice to the other parent of the intention to travel not less than twenty eight (28) days prior to the intended date of departure;

(b) Such notice shall contain a detailed itinerary in relation to the planned travel including details of departure and return dates and destinations, details of means of travel, accommodation address details and telephone contact details for the children during the travel;

(c) The parent wishing to travel shall provide to the other parent details of flight times and itinerary and a photocopy of the return tickets and/or a copy of the return flight/travel confirmation bookings no later than twenty eight (28) days prior to the intended date of departure;

(d) Any overseas travel shall not be taken during any school term except where expressly agreed to in writing by the parties (which should not be unreasonably withheld) or where the travel is for the educational and/or sporting benefit, general advancement or wellbeing of the children.

(e) Any overseas travel shall not be at times that impinges on the non travelling parent’s time with the children school holiday periods as set out in order 6 of these orders unless otherwise agreed between the parents in writing; and

(f) The parent travelling overseas with the children shall cause and facilitate the children to speak to the other parent by telephone at least every seven (7) days whilst the children are travelling overseas.

13.

That the parent holding the children’s passports for any period of travel shall retain them until requested by the other parent to deliver for the purposes of travel provided for in these Orders.

14.

That during the time the children are is with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent respectfully;

(c) Not and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating, assaulting, harassing, threatening or intimidating each other or the other parent’s partner or any member of the other parent’s household or family in the presence or within the hearing of the children and that the mother and father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or the other’s partner or any member of the other’s household or family in the presence or within the hearing of the children.

15.

That in the event that the parents are in dispute about these orders or if agreement needs to be reached regarding the care, welfare and development of the children, or if these orders require amendment or variation and the like which cannot be resolved by way of communication, negotiation and signed/dated/witnessed written agreement between the parents within 14 days, current arrangements will be maintained and the parents agree at first instance they will attend primary dispute resolution, such as mediation, legal aid conference or like service, in good faith, in an endeavour to exhaust the prospects of a consensual resolution of the dispute or grievance or perceived need to amend these orders. The aggrieved parent shall be responsible for arranging such primary dispute resolution, with the cost to be shared. Should the issue not be resolved, both parents are at liberty to make further application to the Court with the giving of fourteen (14) days written notice.

16.

That the process to be used for resolving disputes about the terms or operation of these orders including any dispute in relation to major long term issues affecting the children as defined in Section 4 of the Family Law Act 1975 (“the Act”) shall be as follows:

(a) Both parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;

(b) Both parents shall pay the costs of the Family Dispute Resolution Practitioner equally;

(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;

(d) The father shall choose one of the listed practitioners within seven days of receipt of the list;

(e) If the father fails to choose the mother may choose, and

(f) The parties shall each follow all reasonable recommendations of the Family Dispute Resolution Practitioner, including completing all recommended courses and accepting referrals to other agencies.

17.

That all outstanding applications be dismissed save as to costs.

18.

That the father file and serve submissions with respect to costs by no later than 4.00pm on 24 May 2012.

19.

That the mother file and serve written submissions in reply by no later than 4.00pm on 7 June 2012.

20.

That in the event to mother seeks to file an updated financial statement, this is to be filed and served by no later than 4.00pm on 7 June 2012.

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.