Green and Knowles - [2009] FamCA 271

FAMILY COURT OF AUSTRALIA

GREEN & KNOWLES [2009] FamCA 271

FAMILY LAW – CHILDREN – best interests – with whom a child lives – physical distance of parents and the effect on equal shared and/or significant and substantial time – relationship between shared parental responsibility and ‘time with’– shared parental responsibility in circumstances of a very high level of dispute between the parents – shared parental responsibility in circumstances where one parent is unable to deal with health and education professionals - Child with a disability - shared parental responsibility save for sole responsibility for education and health

Family Law Act 1975 (Cth)

U v U (2002) 211 CLR 238
AMS v AIF;AIF v AMS (1999) FLC 92-852

APPLICANT: Mr Green

RESPONDENT: Ms Knowles

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: MLC 1172 of 2007

DATE DELIVERED: 15 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE:

Father’s representation:
Ms Nikou SC from 15 Oct to 20 Nov 2008
Mr Laidlaw of Counsel on 5 Dec 2008
Mr Chambers of Counsel on 20 Jan 2009
Ms Hedberg of Counsel on 4 Feb 2009
In person from 25 Feb 2009

Mother’s representation:
Mr Kirkham QC, with Mrs Benjamin of Counsel from 15 Oct to 11 Nov 2008
Mrs Benjamin of Counsel on 12 & 13 Nov 2008
Mr Walker on 20 Nov, 5 Dec, 20 Jan, 4 Feb & 25 Feb 2009.
Mrs Benjamin of Counsel from 23 March 2009

ICL’s representation:
Mrs Hooper of Counsel on all dates except 4 Feb 2009 when Ms Jenkinson appeared.

Defended Hearing dates: 15, 16, 17, 21, 22, 23, 24 October 2008, 10, 11, 12, 13 November 2009 & 23, 24, 25, 26, 27 March 2009

Mention Hearing dates:
20 November 2008, 5 December 2008, 20 January 2009, 4 & 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mrs Benjamin

SOLICITOR FOR THE RESPONDENT: JP Stevens Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Macgregor Solicitors
Orders
IT IS ORDERED THAT
(1)That the wife have the sole duty and responsibility of making all decisions with regard to -
(a)which school/s the children X born on … June 2000 and Y born on … July 2003 shall attend from time to time together with any special needs of X relating to all aspects of his education; and

(b) all aspects of X’s health including –
(i)choice of medical and other like practitioners; and
(ii)treatment and therapy.

(2)Subject to paragraph (1) hereof, the husband and the wife otherwise jointly share the parental responsibility of making all decisions with regard to the care, welfare and development of the children.
(3)For the purpose of fulfilling her duties and responsibilities pursuant to paragraph (1) hereof, the wife consult with the husband on all matters relating thereto to the extent that she, in her sole discretion, deems appropriate.
(4)The children live with the wife.
(5)The…

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 Green and Knowles

Details

AGLC: Green and Knowles [2009] FamCA 271
Case: [2009] FamCA 271
Decision Date: 15 April 2009

CaseChat Overview and Summary

This matter came before Mushin J in the Family Court of Australia concerning parenting orders for two children, X and Y. The dispute involved the allocation of parental responsibilities and the arrangements for the children's living situation, time spent with each parent, and communication between the parents regarding the children.

The court was required to determine the extent of each parent's responsibility for decision-making concerning the children's education and health, and to establish specific arrangements for the children's residence, time with each parent, and communication. Additionally, the court needed to address specific restrictions on the husband's conduct concerning one of the children and to outline the flow of information between the parents regarding the children's schooling and medical care.

Mushin J made orders that the wife would have sole responsibility for decisions regarding the children's schooling and the health of child X, including the choice of practitioners and treatment. The husband and wife would otherwise jointly share parental responsibility, with the wife to consult the husband on matters within her sole discretion. The children were ordered to live with the wife, and detailed provisions were made for the husband's time with the children, including during school terms and holidays, with specific conditions regarding accommodation and notice. The court also imposed a restraint on the husband from discussing or weighing child X's weight. Further orders stipulated how information regarding the children's schooling, medical treatment, and significant events would be shared between the parents, with a caveat that schools and practitioners retained discretion regarding the provision of information.

The court ordered that the Registry Manager forward certified copies of the reasons for judgment to a paediatrician and a school principal. All other applications were dismissed, and the proceedings were removed from the list of cases awaiting hearing, with liberty reserved to either party to apply for consequential orders.

Orders

Orders of the court

IT IS ORDERED THAT

(1) That the wife have the sole duty and responsibility of making all decisions with regard to -

(a) which school/s the children X born on … June 2000 and Y born on … July 2003 shall attend from time to time together with any special needs of X relating to all aspects of his education; and

(b) all aspects of X’s health including –

(i) choice of medical and other like practitioners; and

(ii) treatment and therapy.

(2) Subject to paragraph (1) hereof, the husband and the wife otherwise jointly share the parental responsibility of making all decisions with regard to the care, welfare and development of the children.

(3) For the purpose of fulfilling her duties and responsibilities pursuant to paragraph (1) hereof, the wife consult with the husband on all matters relating thereto to the extent that she, in her sole discretion, deems appropriate.

(4) The children live with the wife.

(5) The husband spend time and communicate with the children as follows:

(a) during school term –

(i) from the conclusion of school on Friday to 6 p.m. on Sunday in each alternate week commencing on the first Friday of each school term and fortnightly thereafter;

(ii) time pursuant to sub-paragraph i) hereof be extended to either the commencement of school on Monday or the commencement of school on Tuesday provided that the husband accommodates the children at his property at K or such other accommodation within a radius of 15 km from the children's school/s;

(iii) in the event that the husband seeks to avail himself of the provisions of sub-paragraph ii) hereof, he shall give the wife not less than seven days notice in writing thereof provided however that in the event that he proposes availing himself of that provision on a regular basis, he is not required to give written notice thereof on each specific occasion but may do so on a long term basis; and

(iv) from the conclusion of school until 7 p.m. on each alternate Monday provided that such time be spent within the Melbourne metropolitan area and the father give the children dinner prior to their return to the mother; and

(b) during school holidays -

(i) for one half of the first and third term school holidays to be agreed between the parties and failing agreement the first half;

(ii) for the entirety of the second term school holiday period;

(iii) for two periods each of two weeks during the December/January school holidays to be agreed between the parties;

(iv) from 9 a.m. on 24 December until 10:30 a.m. on 25 December commencing in 2009 and each alternate year thereafter; and

(v) from 10:30 a.m. on 25 December until 9 a.m. on 26 December commencing in 2010 and each alternate year thereafter;

(i) the children spend up to four hours with the parent with whom they are not otherwise spending time pursuant to these orders on –

(ii) each of that parent's birthdays as is appropriate to that parent;

(iii) each of the children's birthdays; and

(iv) Fathers' Day or Mothers' Day as is appropriate to that parent;

(d) for the purpose of facilitating the provisions of this paragraph, except when changeover is to take place at the commencement or conclusion of school, the changeover point shall be the mother's residence; and

(e) as may be otherwise agreed by the parties.

(6) The husband be restrained by himself, his servants or agents from -

(a) discussing X’s weight with him or in his hearing;

(b) discussing X’s weight with Y or in her hearing; and

(7) The parties each advise the other of the location at which the children are residing when they are in the care of each of them.

(8) The wife authorise the principal of any school attended by either of the children to provide to the husband, at his expense, copies of all school reports, notices, order forms for school photographs and all the material and like matters normally provided to parents of students of such school.

(9) The wife authorise any medical or like practitioner treating either child to provide to the husband, at his expense, a report of such treatment and any prognosis thereof –

(a) forthwith in the event of an emergency; and

(b) otherwise quarterly.

(10) The wife keep the husband advised of significant school and extra-curricular activities undertaken by the children and the husband be entitled to attend the same.

(11) The wife and the husband each be and is hereby entitled to attend any parent teacher interview, school concert, school speech night, sporting event, school production or any other like event normally attended by a parent of students.

(12) Nothing in paragraphs (8), (9), (10) or (11) hereof removes from any such school principal, headmistress or headmaster or medical or like practitioner the right to refuse to provide any material, information, right of attendance or like matter provided therein at such person’s sole discretion and particularly in circumstances in which the husband is behaving in an aggressive or confrontational manner.

(13) The wife inform the husband of all prescribed medication to be taken by either child during the time that the child is in the care of the husband and provide to the husband sufficient quantities of such medication to enable him to administer them to the child.

(14) The wife and the husband each keep the other informed as to any significant medical emergency or event suffered by the children or either of them immediately upon the occurrence of such event.

(15) Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders.

(16) That the Registry Manager of the Melbourne Registry of the Court cause a certified copy of these reasons for judgment to be forwarded to –

(a) Dr S, Paediatrician; and

(b) Mrs B, Principal, C School.

(17) Liberty be reserved to either party to apply for any order consequent upon these orders including any order for costs.

(18) All applications be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.

(19) Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel, including Senior Counsel.

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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