Gaynor and Scaife - [2012] FMCAfam 698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAYNOR & SCAIFE

[2012] FMCAfam 698

FAMILY LAW – Parenting – dispute about specific issues concerning twins aged 3 – major issue the children’s surname – whether the children’s surname should be changed from the mother’s surname to a hyphenated surname incorporating the father’s surname – relevance of the fact that the parties agreed on the children’s surname prior to their birth and carried that agreement into effect – whether any restriction should be placed on the mother posting information about or photographs of the children on her Facebook page.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Flanagan & Handcock (2000)FLC93-074
Ryan & Burnett (2008)FamCAFC72

Applicant:

MR GAYNOR

Respondent:

MS SCAIFE

File Number:

NCC 2385 of 2011

Judgment of:

Terry FM

Hearing date:

25 June 2012

Date of Last Submission:

25 June 2012

Delivered at:

Newcastle

Delivered on:

30 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

MBG Lawyers

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Everingham Solomons

ORDERS

THE FOLLOWINGS ORDERS AND NOTATIONS ARE MADE BY CONSENT:

That the father and mother have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2009.
That the father have responsibility for decisions as to the children’s day to day care welfare and development during periods when the children are living with him and that the mother have that responsibility when the children are living with her.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made.
(b)They shall consult with each other on terms that they agree.
(c)They shall make a genuine effort to come to a joint decision.
That the children live with the mother at such times as they are not living with the father in accordance with these orders.
That the children live with the father as agreed between the parties and failing agreement as follows:-
(i)Each alternate weekend during school terms from 5.00pm on Friday until 5.00pm on Sunday.
(ii)Commencing in 2013 during the Term 1, 2 & 3 school holidays each year as follows:
(a)In odd numbered years from 9.00am on the first Saturday until 5.00pm on the second Sunday thereafter.
(b)In even numbered years from 9.00am on the second Saturday until 5.00pm on the Sunday before school resumes.
Special Occasions:
That notwithstanding anything to the contrary herein the children will spend:
(i)Easter:
The Easter long weekend (save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply) with the father from 9.00am on Good Friday until 5.00pm on Easter Monday on first such occurrence and each alternate occurrence thereafter and the children will remain with the Mother on the second such occurrence and each alternate occurrence thereafter.
(ii)The children’s birthday:
Whichever parent does not have care of…

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.

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Details

Case: [2012] FMCAfam 698
Decision Date: 30 July 2012

CaseChat Overview and Summary

The case of Gaynor and Scaife involved the parents of two young children, who were litigating over various aspects of their children's upbringing and parenting arrangements. The primary legal issues revolved around the division of parental responsibilities, the allocation of time the children would spend with each parent, and the communication and interaction between the children and their parents. The court had to consider the welfare of the children, the parents' attitudes towards the children and their responsibilities, and the specific needs of the children as they aged.

The court gave considerable weight to the mother's views about the children's needs, considering her to be the children's primary attachment figure and a capable and insightful parent. The court found no evidence of family violence or unreasonable interference with the father's access to the children. Both parents displayed commendable attitudes towards their children and the responsibilities of parenthood. Based on these considerations, the court decided that the children's primary residence would be with the mother, while the father would have set periods of time with the children, including alternate weekends and specific school holiday arrangements. The court also outlined detailed communication and interaction guidelines between the children and each parent, as well as specific provisions for special occasions and educational matters.

The final orders of the court established equal shared parental responsibility for the children, outlined specific time-sharing arrangements between the parents, and detailed communication and interaction guidelines. Additionally, the court dismissed the father's application for a change of the children's surname and certain other applications. The parties were also required to complete a post-separation parenting course and to make best-efforts to cooperate with one another in the children's upbringing.

Orders

Orders of the court

THE FOLLOWINGS ORDERS AND NOTATIONS ARE MADE BY CONSENT:

That the father and mother have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2009.

That the father have responsibility for decisions as to the children’s day to day care welfare and development during periods when the children are living with him and that the mother have that responsibility when the children are living with her.

That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made.

(b) They shall consult with each other on terms that they agree.

That the children live with the mother at such times as they are not living with the father in accordance with these orders.

That the children live with the father as agreed between the parties and failing agreement as follows:-

(i) Each alternate weekend during school terms from 5.00pm on Friday until 5.00pm on Sunday.

(ii) Commencing in 2013 during the Term 1, 2 & 3 school holidays each year as follows:

(a) In odd numbered years from 9.00am on the first Saturday until 5.00pm on the second Sunday thereafter.

(b) In even numbered years from 9.00am on the second Saturday until 5.00pm on the Sunday before school resumes.

Special Occasions:

That notwithstanding anything to the contrary herein the children will spend:

(i) Easter:

The Easter long weekend (save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply) with the father from 9.00am on Good Friday until 5.00pm on Easter Monday on first such occurrence and each alternate occurrence thereafter and the children will remain with the Mother on the second such occurrence and each alternate occurrence thereafter.

(ii) The children’s birthday:

Whichever parent does not have care of the children on their birthday shall spend time with the children from 1.00pm to 5.00pm on such day, unless the children are in day care/pre-school/school and on such days the time shall be from after day care/pre-school/school until 7.30pm.

(iii) Mother’s Day and Father’s Day

The children shall spend the duration of the weekend of Father’s Day with the father and the duration of the weekend of Mother’s Day with the mother regardless of the ordinary operation of the above orders.

If the father is unable to spend time with the children in accordance with the above orders he will give the mother notice as soon as reasonably practicable.

Communication:

(i) The children shall have communication with the parties at all times as may be agreed between the parties and failing agreement:-

(a) by telephone between 6.30pm and 7.30pm each Monday and Thursday;

(b) on the children’s birthday and on Christmas Day between 8.00am and 9.00am

to be implemented by the parent who is not then with the children telephoning the other’s telephone number and the other parent ensuring that the children are available to receive the calls.

The children be permitted to receive letters from either parent and when age appropriate be permitted to communicate with either parent by telephone, email, or other forms of communication at all reasonable times.

10.

Specific Issues:

(ii) That the Mother forthwith do all acts and things and sign all documents necessary to authorise the children’s’ day care provider and / or pre-school to:

(a) communicate with the father and provide all information requested by him.

(b) permit the father or his nominee to collect and deliver the children to and from day care and/or pre-school in the event of an emergency.

(ii) That unless otherwise agreed in writing, the children shall attend (omitted) Day Care at (omitted) during their pre-school years and (omitted) Primary School during their primary school years.

(iii) That each party shall:-

(a) keep the other party advised of their current residential address, email address, landline and mobile telephone numbers if applicable and notify the other within 3 days of any change to the above.

(b) as soon as practicable notify the other party should the children suffer a serious illness or accident requiring medical treatment whilst in that party’s care.

(c) keep the other party informed by e-mail or telephone of all the children’s extra curricula sporting, cultural and other activities.

(d) not denigrate the other party or any member of the other party’s family in the presence or hearing of the children or permit any other person to do so.

(e) not discuss these court proceedings in the presence of the children nor permit any person to do so.

(f) keep each other fully informed of all matters concerning the children’s health, including any medication prescribed for the children and the names of medical practitioners and health professionals who attend the children from time to time and any future appointments and shall authorise such person/s to provide the other party with such information that may be sought by that party from time to time and the parties shall be hereby authorised to see such information.

(g) keep each other fully informed of the children’s day care, pre-school and schools and authorise such day care, pre-school or school to provide each other with such information concerning the children as may be requested by either party from time to time and both parties shall be hereby authorised to receive that information.

NOTATIONS:

A. The mother and father undertake to use their best endeavours to be fully committed to working together to promote the welfare of the children.

B The parties acknowledge that these orders are made in contemplation of the young age of the children at the time they are made. The parties agree that it is likely that they will need to review these orders as the children age. The parties acknowledge that they will use their best endeavours to reach agreement when reviewing these orders and in relation to resolving disputes about the terms or operation of these Orders. The process to be used in the event of a dispute shall be as follows:

(1) The parties shall consult with a Family Dispute Resolution Practitioner OR Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made.

(2) They shall pay the costs of the Family Dispute Resolution Practitioner equally

(3) In the event that they cannot agree on a Family Dispute Resolute practitioner:

(i) The father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability

(ii) The mother shall choose one of the listed practitioners within seven (7) days of receipt of the list

(iii) If the mother fails to choose then the father may choose.

AND IT IS ORDERED:

11.

That the father’s application for change of the children’s surname is dismissed.

12.

That from the date on which the children commence full time school the father’s time with the children on alternate weekends shall end at 5.00pm on Monday rather than 5.00pm on Sunday if Monday is a public holiday.

13.

That the children shall spend time with the father during the Term 3 school holidays in 2012 from 9.00am on the first Saturday of the holidays to 5.00pm the following Thursday.

14.

That unless otherwise agreed between the parties:

(i) During the 2012/13 Christmas school holidays the children shall spend time with the father from 9.00am on 22 December 2012 until 9.00am on 28 December 2012; from 9.00am on 3 January 2013 until 9.00am on 9 January 2013 and from 9.00am on 15 January 2013 until 9.00am on 21 January 2013.

(ii) During the 2013/2014 Christmas school holidays the children shall spend time with the father from 9.00am on 27 December 2013 until 9.00am on 2 January 2014, from 9.00am on 8 January 2014 until 9.00am on 14 January 2014 and from 9.00am on 20 January 2014 until 5.00pm on 26 January 2014.

(iii) During the 2014/15 Christmas school holidays from 9.00am on 20 December 2014 until 9.00am on 26 December 2014, from 9.00am on 1 January 2015 until 9.00am on 7 January 2015 and from 9.00am on 13 January 2015 until 9.00am on 19 January 2015.

15.

Commencing from the 2015/16 Christmas school holidays the children shall spend time with the father for the second half of the holidays which commence in odd numbered years and the first half of the holidays which commence in even numbered years.

16.

That for the avoidance of doubt the Term 1, 2 and 3 school holidays are deemed to commence at 9.00am on the first Saturday of each school holiday period and end at 5.00pm on the last Sunday of the school holiday period and the Christmas school holidays from 2015 onwards are deemed to commence at 9.00am on the first Saturday of the holidays and end at 5.00pm on the day prior to the commencement of the new school term.

17.

That the father’s application to spend extended weekends with the children on six occasions between 22 November 2012 and 10 December 2013 is dismissed.

18.

That unless otherwise agreed between the parties until the commencement of the first school term in 2014 changeovers of the children between the parties shall take place by the father or his nominee collecting the children from the mother’s home at the commencement of the father’s time and returning the children to the mother’s home at the conclusion of his time.

19.

That thereafter unless otherwise agreed between the parties changeovers of the children between the parties shall take place by the father or his nominee collecting the children from the mother’s home at the commencement of the father’s time and the mother or her nominee collecting the children from the paternal grandparents’ home at the conclusion of the father’s time.

20.

That each parent shall promptly enrol in and complete all sessions of a post-separation parenting course of a type such as “Parents not Partners” and shall provide the other party with a copy of the certificate of completion of the course. Each parent shall use their best endeavours to complete the course within six months.

21.

That neither parent may without the consent of the other in writing attend or remain at the children’s day care centre except for the purposes of dropping off and picking up the children, attending events at the centre to which parents are invited, dealing with emergencies and subject to order (22) on no more than one occasion each term, speaking to the director or appropriate person at the centre about the children’s progress.

22.

That the father shall not attend at the Centre to speak to the director or other appropriate person pursuant to order (21) unless he has first given the mother 7 days notice in writing of the day on which he intends to do so.

23.

That the father’s request for a notation to be made to the orders concerning the mother’s use of social networking sites is dismissed.

24.

That all outstanding applications are otherwise dismissed.

Background

Background to the litigation

I must have regard to the children’s maturity, sex and background. The children have only just turned 3. No expert evidence was given at the hearing about age-appropriate spend time with arrangements for the children. However I consider that I should place weight on what the mother’s considers that children would cope with in terms of separation from her, for the following reasons:(i)The mother is the children’s primary attachment figure; they have been with her day in and day out for the majority of the days of their lives.(ii)The mother is a capable and insightful parent. The father was content to entrust the children to her care after they were born and the children have developed into healthy secure three year olds.(iii)There was no sign that the mother was an unduly anxious parent or a parent who lacked the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. She has never sought to prevent the father spending time with the children and her decision to move to the (omitted) area showed a high degree of child focus. (iv)It is reasonable therefore to find that the mother’s views about what is right for the children flow from a sound appreciation of their needs rather than from a desire to protect the children when no need for protection exists or a desire to unreasonably prevent the father spending time with them or to jealously guard her primacy as the decision maker. I must have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents. Insofar as each parent has always been keen to be part of the children’s lives they have each displayed a commendable attitude to the children and to the responsibilities of parenthood. The mother showed a commendable attitude to the children and to the responsibility of parenthood when she decided to relocate to a place close to the paternal grandparents’ home rather than to see these very young children subjected to six hours of car travel each alternate weekend. The mother is bitter about the father’s decision to give up work for two years, leading to him not being liable to pay any child support until at least February 2013 and probably to the end of 2013, but it was not put to the father during cross-examination that he had done this with a view to avoiding payment of child support and it is not open to me to find that this was the case. I must have regard to any family violence involving the children or a member of the children’s family. There were no allegations of family violence in the parties’ material. The father’s description during cross-examination and re-examination of some incidents which had occurred between the parties at changeover threw up an issue about family violence but (wisely) neither counsel sought to make anything of this during submissions. There are no family violence orders. I must consider whether it is preferable to make the order least likely to lead to further proceedings.

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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