Glover and Glover - [2009] FamCA 276

FAMILY COURT OF AUSTRALIA

GLOVER & GLOVER

[2009] FamCA 276

FAMILY LAW – CHILDREN – time with father – school child to attend from 2010

Family Law Act 1975 (Cth)

Korban & Korban [2008] FamCA 292
Jann v Yann (1976) FLC 90-027
Foster v Foster (1977) FLC 90-281
H v H-K (1990) 13 Fam LR 786
Padgen v Padgen (1991) FLC 92-231
Forck v Thomas (1993) 16 Fam LR 516
F v B [2000] FamCA 676;
M v M, unreported 13 December 2001 per Le Poer Trench J
M v G, unreported 15 July 2003 per Kay J
H v H (2003) FMCAfam 41

APPLICANT:

Ms Glover

RESPONDENT:

Mr Glover

FILE NUMBER:

SYC

6153

2007

DATE DELIVERED:

9 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

10 September 2008 & 17 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Young,
Stacks Family Law

THE RESPONDENT:

In person

Orders

The parents are to have equal shared parental responsibility for the children A born … July 1991; E born … January, 1994; D born … September 1995 and J born … June 2004.
The children are to live with their mother at all times it is not specified by these orders they are to be living with their father.
The children are to live with their father as follows:
(I)A and E and D as agreed between their parents in accordance with their wishes;
(II)J at these times if his father is living in Sydney:
(a)from the date of these orders until the commencement of the 2010 school year
(i)during school terms in week 1 from after preschool Thursday until before preschool Friday and in week 2 from after preschool Thursday until before preschool Monday or Tuesday if Monday is a public holiday;
(ii)during school holidays for one half of the school holidays following terms 1, 2 and 3, to be for the second half of the holidays unless otherwise agreed;
(iii)for one half of the Christmas 2009/10 school holidays as agreed and failing agreement for periods not exceeding two weeks to alternate provided the child is with his mother during the period that includes Christmas morning 2009;
(iv)for Father’s Day from 5pm the day before until Monday before preschool if that is not a weekend he is in his father’s care pursuant to these orders, provided these orders are suspended to enable the child to be in his mother’s care on Mother’s Day from 5pm the day before if that is a weekend he would otherwise be in this father’s care pursuant to these orders;
(v)the child’s birthday at such time as may be agreed but failing agreement to be celebrated with the parent with whom the child is living on that day.
(b)from the commencement of the 2010 school year:
(i)during school terms in week 1 from after school Thursday until before school Friday and in week 2 from after school Thursday until before school Monday or Tuesday…

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 Glover and Glover

Details

AGLC: Glover and Glover [2009] FamCA 276
Case: [2009] FamCA 276
Decision Date: 9 April 2009

CaseChat Overview and Summary

This matter concerned an application by the parents, Glover and Glover, for orders regarding their four children. The dispute centred on the arrangements for the children's living arrangements and time with each parent.

The court was required to determine the nature of parental responsibility and the specific time arrangements for each of the four children, A, E, D, and J, considering their differing ages and circumstances. This included establishing a framework for shared parental responsibility and detailing the practicalities of the children living with each parent, including during school terms and holidays, and on specific occasions such as birthdays and Father's Day.

Moore J made orders for equal shared parental responsibility for all four children. The primary residence of the children was to be with their mother, with specific provisions for the children to live with their father at agreed times, or as detailed in the orders. These detailed provisions varied for the older children (A, E, and D) and the youngest child (J), with further distinctions for J depending on whether his father resided in Sydney. The orders also included provisions for notification of illness, changes of address, and the enrolment of J in primary school.

Orders

Orders of the court

The parents are to have equal shared parental responsibility for the children A born … July 1991; E born … January, 1994; D born … September 1995 and J born … June 2004.

The children are to live with their mother at all times it is not specified by these orders they are to be living with their father.

The children are to live with their father as follows:

(I) A and E and D as agreed between their parents in accordance with their wishes;

(II) J at these times if his father is living in Sydney:

(a) from the date of these orders until the commencement of the 2010 school year

(i) during school terms in week 1 from after preschool Thursday until before preschool Friday and in week 2 from after preschool Thursday until before preschool Monday or Tuesday if Monday is a public holiday;

(ii) during school holidays for one half of the school holidays following terms 1, 2 and 3, to be for the second half of the holidays unless otherwise agreed;

(iii) for one half of the Christmas 2009/10 school holidays as agreed and failing agreement for periods not exceeding two weeks to alternate provided the child is with his mother during the period that includes Christmas morning 2009;

(iv) for Father’s Day from 5pm the day before until Monday before preschool if that is not a weekend he is in his father’s care pursuant to these orders, provided these orders are suspended to enable the child to be in his mother’s care on Mother’s Day from 5pm the day before if that is a weekend he would otherwise be in this father’s care pursuant to these orders;

(v) the child’s birthday at such time as may be agreed but failing agreement to be celebrated with the parent with whom the child is living on that day.

(b) from the commencement of the 2010 school year:

(i) during school terms in week 1 from after school Thursday until before school Friday and in week 2 from after school Thursday until before school Monday or Tuesday if Monday is a public holiday;

(ii) during school holidays for one half of all school holidays to be for the first half in even numbered years and the second half in odd numbered years;

(v) the child’s birthday at such time as may be agreed but failing agreement to be celebrated with the parent with whom the child is living on that day.

(III) J at these times if his father is not living in Sydney

(a) at times agreed between the parents but not less than:

(i) one half of the school holidays following the end of term 1;

(ii) ten days of the school holidays following the end of terms 2 and 3;

(iii) four weeks of the school holidays following the end of term 4 provided if that applies to the 2009/2010 year the period is taken in 2X2 week block periods and provided further that the period the child is with his mother includes Christmas morning 2009;

Unless otherwise agreed, J’s care is to be changed over at his preschool or school whichever applies whenever the orders specify that venue to be the start or end of his time with his father and otherwise his care is to be changed over at his mother’s residence.

Notwithstanding any order about J’s time with his father and subject to any agreement between the parents to the contrary, if his father is to be absent for more than two nights when J is scheduled to be in his care then J is to be returned to his mother by the father’s nominee before the third night of absence and if his father returns before the end of the scheduled period J can be collected by his father when he returns.

Each parent is to notify the other as soon as reasonably practicable of:

(i) any illness or injury suffered by any of the children which requires medical treatment of any kind;

(ii) any change to his or her residential address or telephone number.

The mother is to be at liberty to enrol the child J to attend a primary school of her choosing.

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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