Garvey & Eccles

Case [2008] FMCAfam 1218


FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARVEY & ECCLES [2008] FMCAfam 1218
FAMILY LAW – Parenting – relocation – where mother has significant health issues – impact of relocation on substantial and significant time with father – effect of relocation on meaningful relationship – admissibility of evidence in family report.
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

D & T [2007] FamCA 1383
Godfrey&v Sanders (2007) FamCA 102
M & K [2007] FMCAfam 26
M & S [2006] FamCA 1408
Mazorski & Albright (2007) 37 Fam LR 518

Oakley & Reid [2007] FamCA 1520

Bruce Smyth, Time to rethink time? The experience of time with children after divorce, Family Matters No. 76, Winter 2005 page 4.
Johnston J, Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making, (1995) 33 Family and Conciliation Courts Review 415.
McIntosh J and Chisholm R, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research, (2008) 20(1) Australian Family Lawyer 3.

Applicant: MR GARVEY
Respondent: MS ECCLES
File Number: SYC 7150 of 2007
Judgment of: Altobelli FM
Hearing date: 18 August 2008
Date of Last Submission: 19 August 2008
Delivered at: Wollongong
Delivered on: 17 November 2008

REPRESENTATION

Counsel for the Applicant: Ms Rees
Solicitors for the Applicant: Hamish Cumming Family Lawyers
Counsel for the Respondent: Mr Schonell
Solicitors for the Respondent: Gayle Meredith & Associates

ORDERS

(1)The parents have equal shared parental responsibility for the children [L] born in 2004 and [C] born in 2005.

(2)That the children live with the mother.

(3)That in 2008 that the children spend time with the father as follows:

(i)during school term on each alternate weekend from 4.30 pm on Friday until 5.00 pm on Sunday, (“the period”);

(ii)each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;

(iii)in the December/January school holiday period for the first four nights in each alternate week of the holidays, the first week to be the week commencing 28 December 2008;

(4)That in 2009 the children spend time with the father as follows:

(i)during school term on each alternate weekend from 5.00 pm on Friday until the commencement of school and preschool on Monday;

(ii)each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;

(iii)in each of the April, July and October school holidays from the first day of the holiday for a period of six nights;

(iv)in the December/January school holiday period for the first six nights in each alternate week of the holidays, the first week to be the week commencing 27 December 2009;

(5)That in 2010 and each year thereafter the children spend time with the father as follows;

(i)during school term on each alternate weekend from 4.30 pm on Friday until the commencement of school and preschool on Monday;

(ii)during school term on every Tuesday…

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Garvey & Eccles [2008] FMCAfam 1218
Case
[2008] FMCAfam 1218
Decision Date

CaseChat Overview and Summary

In the case of Garvey & Eccles, the parents of two children, [L] born in 2004 and [C] born in 2005, were before the court to determine their shared parental responsibility and living arrangements. The mother sought primary residence for the children, while the father requested a more equal sharing of time with his children. The court was tasked with determining the best interests of the children regarding their residence and access arrangements.

The court considered various factors, including the emotional and psychological needs of the children, the stability of their current living arrangements, and the capacity of each parent to provide for those needs. The primary legal issue was to establish an arrangement that would best serve the children's welfare, considering their age and developmental stage. Additionally, the court had to decide on the specific periods during which the father would have access to the children, ensuring these arrangements were practical and conducive to the children's educational and social needs.

The court found that the children's best interests were served by an arrangement that allowed them to maintain a primary residence with their mother while ensuring the father had substantial and meaningful time with them. The court ordered that the parents share equal parental responsibility and that the children live primarily with their mother. The detailed access schedule for the father included specific times during school terms, school holidays, and special occasions. The court also mandated communication between the children and the non-resident parent and required the parents to participate in family dispute resolution and parenting assessments to address any future concerns.

The final orders included specific arrangements for the children's living situation and access times with the father, provisions for communication between the children and their parents, and requirements for the parents to engage in ongoing family dispute resolution and parenting assessments. This comprehensive approach aimed to ensure the children's needs were met and that any future disputes could be resolved amicably.

Orders

Orders of the court

(1) The parents have equal shared parental responsibility for the children [L] born in 2004 and [C] born in 2005.

(2) That the children live with the mother.

(3) That in 2008 that the children spend time with the father as follows:

(i) during school term on each alternate weekend from 4.30 pm on Friday until 5.00 pm on Sunday, (“the period”);

(ii) each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;

(iii) in the December/January school holiday period for the first four nights in each alternate week of the holidays, the first week to be the week commencing 28 December 2008;

(4) That in 2009 the children spend time with the father as follows:

(i) during school term on each alternate weekend from 5.00 pm on Friday until the commencement of school and preschool on Monday;

(ii) each Wednesday from after school, preschool or 3.30pm through to before school, preschool or 9am (as the case may be) the following day;

(iii) in each of the April, July and October school holidays from the first day of the holiday for a period of six nights;

(iv) in the December/January school holiday period for the first six nights in each alternate week of the holidays, the first week to be the week commencing 27 December 2009;

(5) That in 2010 and each year thereafter the children spend time with the father as follows;

(i) during school term on each alternate weekend from 4.30 pm on Friday until the commencement of school and preschool on Monday;

(ii) during school term on every Tuesday from 4.30pm to Thursday at 9.00am.

(iii) for one half of the April, July and October school holiday periods, being the second half in 2010 and in each alternate year and being the first half in 2011 and each alternate year;

(iv) in alternate weeks during the December/January school holiday period, the first week to commence in the first full week following Christmas Day.

(6) That the children spend time with the father in addition to the time set out in Orders 2 – 4 herein as follows:

(a) on Fathers Day from 9.00 am to 5.00 pm;

(b) on the father’s birthday from 10:00 am to 4:00 pm;

(c) by telephone on days that the children live with the mother on one occasion daily between the hours of 7.00 pm and 7.30 pm.

(7) That should the mother’s birthday fall during a time the children spend time with the father then the father shall return the children to the mother from 10:00 am to 4:00 pm.

(8) That when the children are with the father that the mother be at liberty to communicate with the children by telephone on one occasion daily during the hours of 7.00 pm and 7.30 pm.

(9) That when the children are with the mother that the father be at liberty to communicate with the children by telephone on one occasion daily during the hours of 7.00 pm and 7.30 pm.

(10) That school holidays are defined as commencing from after school on the last day of school term until the first day of school (not being a pupil free day).

(11) That the parents agree to review the parenting arrangements in consultation with a mediator if any concerns arise regarding the children’s wellbeing and adjustment to changes in parenting arrangements.

(12) Pursuant to section 13C of the Family Law Act 1975 the parties must within 21 days contact Relationships Australia on 1300 364 277 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

(13) The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.

(14) If assessed as suitable and Relationships Australia nominates counselling mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.

(15) The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.

(16) That in the event the parents cannot reach a joint decisions about:-

(a) a major long-term issue involving the Child; or

(b) the interpretation of these Orders; or

(c) the implementation of these Orders; or

(d) the enforcement of these Orders; which involve the child,

each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.

(17) That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-

(a) The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and

(b) The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.

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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