Heath & Heath - [2012] FamCA 844

FAMILY COURT OF AUSTRALIA

HEATH & HEATH

[2012] FamCA 844

FAMILY LAW – CHILDREN - Relocation

Family Law Act 1975 (Cth)

APPLICANT:

Ms Heath

RESPONDENT:

Mr Heath

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3318

2011

DATE DELIVERED:

4 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

4-8 June 2012 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Reid Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Pearson Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harland

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED THAT:

The parties have equal joint parental responsibility for the children of their marriage namely M born on … May 1998 and

L born on … February 2003.
The children shall subject to these Orders live with the mother.
The children shall spend time with the father:
(a)from after school Thursday until commencement of school the following Wednesday each alternate week
(b)for half of each school holiday period and in the absence of other agreement in the first half in even numbered years and in the second half in odd numbered years
(c)on the father’s birthday if the children are not already residing with him on that day from 3.00 pm on the day before the father’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday
(d)on the mother’s birthday if the children are not already residing with her on that day from 3.00 pm on the day before the mother’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday

(e)on the children’s birthdays if the children are not already residing with the father on that day and the birthday falls on a school day both children are to spend time with the father from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the father from 9.00 am until 3.00 pm
(f)on the children’s birthdays if the children are not already residing with the mother on that day and the birthday falls on a school day both children are to spend time with the mother from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the mother from 9.00 am until 3.00 pm
(g)unless otherwise agreed on Christmas Day the children shall spend time with the father from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day to 3.00 pm Boxing Day in odd numbered…

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 Heath & Heath

Details

AGLC: HEATH & HEATH [2012] FamCA 844
Case: [2012] FamCA 844
Decision Date: 4 October 2012

CaseChat Overview and Summary

In *Heath & Heath*, Fowler J determined the parenting arrangements for the two children of the marriage, M and L. The dispute concerned the division of parental responsibility and the specific time the children would spend with each parent.

The court was required to determine the extent of joint parental responsibility for the children and to establish a detailed schedule for the children's living arrangements and time spent with each parent, including provisions for regular contact, school holidays, birthdays, and significant annual events. The court also considered the parties' liberty to attend and be informed of the children's extracurricular activities.

Fowler J ordered that the parties have equal joint parental responsibility for M and L. The children were to live with the mother, and a comprehensive schedule was set out for the children to spend time with the father. This schedule included alternate week residency from Thursday after school until Wednesday morning, half of each school holiday period, and specific arrangements for birthdays, Christmas, Father's Day, and Mother's Day. The orders also stipulated that each parent could attend the children's activities and would endeavour to keep the other informed and provide reasonable notice.

Orders

Orders of the court

IT IS ORDERED THAT:

The parties have equal joint parental responsibility for the children of their marriage namely M born on … May 1998 and

L born on … February 2003.

The children shall subject to these Orders live with the mother.

The children shall spend time with the father:

(a) from after school Thursday until commencement of school the following Wednesday each alternate week

(b) for half of each school holiday period and in the absence of other agreement in the first half in even numbered years and in the second half in odd numbered years

(c) on the father’s birthday if the children are not already residing with him on that day from 3.00 pm on the day before the father’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday

(d) on the mother’s birthday if the children are not already residing with her on that day from 3.00 pm on the day before the mother’s birthday until the commencement of school on the day following the birthday if that day is a school day or in the event that it is not a school day at 10.00 am on the day following the birthday

(e) on the children’s birthdays if the children are not already residing with the father on that day and the birthday falls on a school day both children are to spend time with the father from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the father from 9.00 am until 3.00 pm

(f) on the children’s birthdays if the children are not already residing with the mother on that day and the birthday falls on a school day both children are to spend time with the mother from 3.00 pm until 6.00 pm and if it falls other than on a school day both children are to spend time with the mother from 9.00 am until 3.00 pm

(g) unless otherwise agreed on Christmas Day the children shall spend time with the father from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day to 3.00 pm Boxing Day in odd numbered years

(h) unless otherwise agreed if the children are not with their father on Fathers Day the children shall spend time with the father from 6.00 pm on the day before Fathers Day until the commencement of school on the day following Fathers Day

(i)

unless otherwise agreed if the children are not with their mother on Mothers Day the children shall spend time with the mother from

6.00 pm on the day before Mothers Day until the commencement of school on the day following Mothers Day.

(j) on all special occasions referred to above the parent receiving the children will be responsible for collecting the children at the commencement of the period.

Each of the parties will be at liberty to attend and engage in any sporting, after school, recreation, educational or other activity in which the children are involved and shall use their best endeavours to keep the other parent informed of all such activities and provide reasonable notice thereof to facilitate their attendance.

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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