Garner and Garner - [2010] FMCAfam 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARNER & GARNER

[2010] FMCAfam 216

FAMILY LAW – Parenting – whether interim orders made for children to spend equal time with their parents should be continued – relationship with boys aged eight and twelve with each of their parents – weight to be given to their views.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA
Children and Young Persons (Care and Protection) Act 1998 (NSW) No. 157

Calvert & Calvert [2008] FMCAfam 101
Chappell & Chappell (2008) 39 Fam LR 627
Goode & Goode [2006] FamCA 1346
Harrison & Woollard (1995) 18 Fam LR 788
McCall & Clark [2009] FamCAFC 92
R & R Children’s Wishes (2000) 25 Fam LR 712

Applicant:

MS GARNER

Respondent:

MR GARNER

File Number:

SYC 7246 of 2008

Judgment of:

Walker FM

Hearing dates:

4 & 5 March 2010

Date of Last Submission:

5 March 2010

Delivered at:

Sydney

Delivered on:

22 April 2010

REPRESENTATION

Counsel for the Applicant:

Ms Rees

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr Moore

Solicitors for the Respondent:

Slade Manwaring Solicitors

THE COURT ORDERS THAT:

The parents are to have equal shared parental responsibility for the children, [X] born [in] 1997 and [Y] born [in] 2001.
The children are to live with their mother.
Unless otherwise agreed the children are to spend time with their father during school term on a two weekly cycle:
(a)From after school on Wednesday in week one until before school the following Monday.
(b)The two weekly cycle is to commence in the first week of each school term.
(c)For the purposes of these orders, if on the date of the orders the children are spending the week with their mother, the fortnightly cycle will commence at the conclusion of that week. If the children are currently spending the week with their father, the fortnightly cycle will commence after the next week they spend with their mother.
The children are to spend half of each school holiday period with each parent as agreed but otherwise with their mother in the first half in years ending with an even number and with their father in years ending with an odd number. For the purposes of this order school holidays will be deemed to commence after school on the Friday of the last week of the school term.

Special days

The children are to spend from midday on Christmas Eve until 10.00am on Boxing Day with the parent with whom they would not otherwise be spending the first half of the Christmas school holidays.
The children are to spend time with their mother on Mother’s Day from 10.00am until 5.00pm if they would not otherwise already be in her care
The children are to spend time with their father from 10.00am until 5.00pm on Father’s Day if they would not otherwise already be in his care.
Unless otherwise agreed, for the purpose of changeover, the father will collect the children from the mother’s residence when he is…

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 Garner and Garner

Details

AGLC: Garner and Garner [2010] FMCAfam 216
Case: [2010] FMCAfam 216
Decision Date: 22 April 2010

CaseChat Overview and Summary

The matter of Garner and Garner was heard in the Family Court of Australia, where the parents, [X] and [Y], sought a resolution regarding the care and custody of their two children, born in 1997 and 2001. The parents could not agree on the arrangements for the children's living and contact arrangements, and thus the court was tasked with determining these matters in the best interests of the children.

The legal issues before the court included the allocation of parental responsibility, the primary residence of the children, and the detailed schedule for the children's time to be spent with each parent, including during school terms and holidays. Additionally, the court had to consider the specific arrangements for special days, the logistics of child exchanges, and the maintenance of contact between the children and each parent.

The court found that equal shared parental responsibility was in the children's best interests, with the children to primarily reside with their mother. The detailed time-sharing arrangements were set out in the orders, including a two-weekly cycle during school terms, and a balanced allocation of school holiday time, alternating years. Special days such as Christmas Eve, Mother’s Day, and Father’s Day were also allocated, with provisions for changeovers and telephone contact. Both parents were directed to attend a parenting after separation course, with further courses or counselling to be undertaken as recommended.

The final orders, as listed in the case summary, detail the arrangements for parental responsibility, residence, time-sharing, special days, contact, and parenting courses. These orders reflect the court's determination of what is in the best interests of the children, balancing the needs and circumstances of both parents.

Orders

Orders of the court

The parents are to have equal shared parental responsibility for the children, [X] born [in] 1997 and [Y] born [in] 2001.

The children are to live with their mother.

Unless otherwise agreed the children are to spend time with their father during school term on a two weekly cycle:

(a) From after school on Wednesday in week one until before school the following Monday.

(b) The two weekly cycle is to commence in the first week of each school term.

(c) For the purposes of these orders, if on the date of the orders the children are spending the week with their mother, the fortnightly cycle will commence at the conclusion of that week. If the children are currently spending the week with their father, the fortnightly cycle will commence after the next week they spend with their mother.

The children are to spend half of each school holiday period with each parent as agreed but otherwise with their mother in the first half in years ending with an even number and with their father in years ending with an odd number. For the purposes of this order school holidays will be deemed to commence after school on the Friday of the last week of the school term.

Special days

The children are to spend from midday on Christmas Eve until 10.00am on Boxing Day with the parent with whom they would not otherwise be spending the first half of the Christmas school holidays.

The children are to spend time with their mother on Mother’s Day from 10.00am until 5.00pm if they would not otherwise already be in her care

The children are to spend time with their father from 10.00am until 5.00pm on Father’s Day if they would not otherwise already be in his care.

Unless otherwise agreed, for the purpose of changeover, the father will collect the children from the mother’s residence when he is spending time with them and the mother will collect the children from the father’s residence at the end of their time with him.

Each of the parents is permitted to telephone the children on every second day while the children are in the care of the other parent.

10.

Each of the parents is to permit the children to telephone the other parent at all reasonable times.

11.

Each of the parents is to keep the other advised of all contact details including landline and mobile telephone numbers.

12.

The father and mother are each to attend a parenting after separation course, and undertake any further course or counselling session recommended by the centre which conducts the parenting after separation course.

13.

The parent with whom the children are living or spending time is responsible for ensuring that the children attend dance lessons and dance competitions held during the time the children are with that parent. Where payment is required for such attendance, the parent responsible for ensuring attendance is also responsible for such payment.

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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