Hailes & King - [2008] FMCAfam 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAILES & KING

[2008] FMCAfam 102

FAMILY LAW – Parenting orders.

Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(3)(a), (b), (ca), (d), (e), (f), (g), (i), 4, 4A, 60CG, 61DA, 64B, 65D, 65AB, 65DAB

Goode & Goode (2006) FLC 93-286

KML & RAE (2006) FMCAfam 528

H & H (2003) FLC 93-168

Applicant:

MR HAILES

Respondent:

MS KING

File Number:

BRC 3241 of 2007

Judgment of:

Purdon-Sully FM

Hearing dates:

11 & 12 December 2007

Date of Last Submission:

12 December 2007

Delivered at:

Brisbane

Delivered on:

15 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms McDiarmid

Solicitors for the Applicant:

Thynne & Macartney

Counsel for the Respondent:

Mr McGregor

Solicitors for the Respondent:

Mitchell Lawyers

ORDERS

That all previous Orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child, S, born in 2004.
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 notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.

Exchange of Information

That the Mother and Father shall:
(a)keep the other parent informed within 48 hours of any change to their residential address and landline and mobile contact telephone numbers;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treats the child this Order being authority for those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child, this Order being authority for any treating medical practitioner to release the child’s medical information to the other parent.
That the parents authorise, by this Order, any day care centre or school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of 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 Hailes & King

Details

AGLC: Hailes & King [2008] FMCAfam 102
Case: [2008] FMCAfam 102
Decision Date: 15 February 2008

CaseChat Overview and Summary

The case of Hailes & King involves a dispute between the parents of a child born in 2004, focusing on the child's residence, care, and other significant aspects of her upbringing. The parents were unable to agree on the terms of their child's upbringing, leading to proceedings before the Family Court of Australia. The court was tasked with determining the allocation of parental responsibilities, the schedule for the child's time with each parent, and various other issues related to the child's welfare and upbringing.

The legal issues before the court included the allocation of equal shared parental responsibility, the determination of the daily care, welfare, and development responsibilities of each parent, the establishment of a framework for the parents to consult and make joint decisions, and the specific arrangements for the child's residence, communication, and participation in extracurricular activities. The court also had to decide on the parameters for the exchange of information between the parents and the specific times during which the child would live with or spend time with each parent, particularly during school terms and holiday periods.

The court's reasoning focused on ensuring that the arrangements made were in the best interests of the child. It recognised the importance of both parents having equal shared parental responsibility while acknowledging that practical considerations necessitated different daily care arrangements. The court detailed a comprehensive schedule for the child's time with each parent, aiming to provide stability and continuity in her life. It also mandated specific measures to facilitate communication and cooperation between the parents, including joint dispute resolution and counselling. The court emphasised the need for the parents to maintain a respectful relationship and to minimise the impact of their conflict on the child.

The orders made by the court reflect a balanced approach, granting equal shared parental responsibility to both parents while assigning specific daily care responsibilities. The court set out detailed schedules for the child's residence and time with each parent, taking into account school terms, holiday periods, and special occasions. It also included provisions for the exchange of information, communication between the child and her parents, and the parents' obligations to consult and make joint decisions. The court further addressed specific issues such as the child's medical care, discipline, and participation in extracurricular activities. The final orders ensure that the child's welfare remains the primary consideration in all decisions made regarding her upbringing.

Orders

Orders of the court

That all previous Orders be discharged.

That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child, S, born in 2004.

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 notwithstanding the provisions of Order 2:

(a) the Mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her;

(b) the Father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.

Exchange of Information

That the Mother and Father shall:

(a) keep the other parent informed within 48 hours of any change to their residential address and landline and mobile contact telephone numbers;

(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treats the child this Order being authority for those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child, this Order being authority for any treating medical practitioner to release the child’s medical information to the other parent.

That the parents authorise, by this Order, any day care centre or school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

That during the time the child is with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Time with the parents

That the child is to live with, spend time with and/or communicate with the Mother and Father as agreed and if they fail to agree then as follows.

That the child shall live with the Father:

(a) Until the child commences school in 2009:

(i) each alternate week from 4.00pm Thursday to 5.00pm Sunday commencing 28 February 2008 until the commencement of any school holiday period;

(ii)

each other week from Friday at 9.30am commencing

22 February 2008 until after the child’s ballet classes and if the child is not attending ballet that day then until 4.30pm;

(b) After the child commences school in 2009:

(i) each alternate week from after school on Thursday to the commencement of school on Monday until the commencement of any school holiday period;

(ii) each other week from after school on Thursday to the commencement of school on Friday;

(c) this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.

10.

That otherwise, the child shall live with the Mother during school term.

11.

That the child shall spend time/live with her parents for school holiday periods as follows:

(i) the first half of the June/July and September/October school holidays with the Father and the second half with the Mother;

(ii) the first half of the Christmas school holiday periods in even numbered years and the second half of the Christmas school holidays in odd numbered years with the Father;

(iii) the first half of the Christmas school holiday periods in odd numbered years and the second half of the Christmas school holiday periods in even numbered years with the Mother;

(iv) the first half of the Easter school holidays in odd numbered years and the second half of the Easter school holiday periods in even numbered years with the Father;

(v) the first half of the Easter school holidays in even numbered years and the second half of the Easter school holiday periods in odd numbered years with the Mother.

(b) for the purpose of these Orders, the school holiday time shall commence:

(i) when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;

(ii) when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term commences;

(iii) school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.

12.

That in the event that in any year both parents are on the Gold Coast on any of Christmas Day, the child’s birthday and between Good Friday and Easter Monday the child shall spend time with the Father and Mother on Christmas Day, on the child’s birthday and from Good Friday to Easter Monday at such times as may be agreed.

13.

That the child shall further spend time with the Father and Mother on the following special occasions:

(a) on Father’s Day (if a non-contact week-end) from 9.00am until 6.00pm with the Father to be responsible to collect and return the child;

(b) on Mother’s Day (if a non contact weekend) from 9.00am until 6.00pm with the Mother to be responsible to collect and return the child;

14.

That the child shall communicate with her parents on the telephone as follows:

(a) at such times as the child reasonably requests; and

(b) the parent with whom the child is not living shall be at liberty to telephone at all reasonable times and in relation to such communication each parent shall:

(i) ensure that the child is available to receive the telephone call;

(ii) ensure that the child has privacy during the conversation.

Collection and Delivery

15.

That changeovers shall take place as follows:

(a) when the child attends school changeovers shall take place at school;

(b) if the child is not attending school changeovers shall take place as follows:

(i) the child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at the Mother’s home or other agreed place;

(ii) the child shall be collected by the Mother or her nominee from the Father or his nominee at the conclusion of his time with the child at the Father’s home or other agreed place.

16.

That each parent shall deliver and return any clothing, school supplies and belongings of the child.

Education

17.

That the child attend the [M] College for both her primary and secondary school education.

Religion

18.

That the child be raised in the Roman Catholic faith and that the Mother and Father promote the child’s religious observance required by members of that faith.

Extra-Curricular Activities

(19) That the child be permitted to continue her weekly swimming and ballet lessons unless the parents otherwise agree.

Specific Issues

20.

That the parents (when the child is in their care) save in cases of emergency and unless there is agreement between the parents ensure that the child’s medical consultations take place at the [E] Medical Centre at [R] in the State of Queensland.

21.

That the parents shall not (when the child is in their care):

(a) physically discipline the child;

(b) remove the child from the Gold Coast area for a holiday unless the other parent is informed and without providing to the other parent details of date of departure and return and the address and contact details for the child whilst away.

Primary Dispute Resolution

22.

That the parents jointly engage Ms Robyn Wileman or such other suitable person as may be agreed and that the parents use their best endeavours to encourage their respective partners to participate with them in joint or separate counselling as may be advised by

Ms Wileman, the costs of such counselling to be shared equally, to assist them with the following:

(a) any unresolved relationship issues between the parents and/or either of the parents and their respective partners;

(b) how to develop a functioning co-parenting model in the child’s interests;

(d) how to improve their communication with each other;

(e) how to develop and maintain a respectful relationship;

(f) how to improve their dispute resolution skills;

(g) any other matters identified by Ms Wileman.

23.

That Ms Wileman or such other agreed counsellor be provided with a copy of the reports of Ms Clarke together with a copy of these Orders and Reasons for Judgement.

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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