HIGGINS & HIGGINS - [2012] FMCAfam 1503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2012] FMCAfam 1503

FAMILY LAW – CHILDREN – Parenting Orders – best interests of the children – parental responsibility – sole parental responsibility – equal shared parental responsibility – whether equal shared parental responsibility in children’s best interests – where father has not had any communication with daughter for a year – child’s school – whether it is in child’s best interests to go to another school – whether a change should take place during the school year.

Family Law Act 1975, ss.10G, 60CA, 60CC, 61B, 61DA

Chappell v Chappell [2008] FamCAFC 143; (2009) 39 Fam LR 627
Higgins & Higgins [2012] FMCAfam 815
Marvel & Marvel (No.2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant:

MS HIGGINS

Respondent:

MR HIGGINS

File Number:

SYC 5083 of 2010

Judgment of:

Scarlett FM

Hearing dates:

20 September & 4 October 2012

Date of Last Submission:

4 October 2012

Delivered at:

Sydney

Delivered on:

5 October 2012

REPRESENTATION

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Aitken Lawyers

ORDERS

Order (1) made on 13 August 2012 is discharged.
The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 1995 but she must notify the Respondent father within seven (7) days of any major long-term decision she is required to make in respect of the child.
The Mother and the Father are to have equal shared parental responsibility for the children Y born (omitted) 1997 and Z born (omitted) 2001.
In the event that the parties are unable to come to a joint decision about any major long term issue concerning either of the children Y or Z they are to consult jointly with a family dispute resolution practitioner as defined by Section 10G of the Family Law Act 1975 and seek the assistance of the family dispute resolution practitioner to come to a joint decision about the major long term issue concerning either of the children Y or Z in dispute between them.
Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary for the child Z to discontinue his enrolment at (omitted) Public School with effect from the conclusion of Term 4 2012.
Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary to enable the child Z to be enrolled at (omitted) Public School with effect from the beginning of Term 1 2013.
The Independent Children’s Lawyer is discharged save for any argument in respect of costs.

IT IS NOTED that publication of this judgment under the pseudonym Higgins & Higginsis approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5083 of 2010

MS HIGGINS

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 HIGGINS & HIGGINS

Details

AGLC: HIGGINS & HIGGINS [2012] FMCAfam 1503
Case: [2012] FMCAfam 1503
Decision Date: 5 October 2012

CaseChat Overview and Summary

Higgins & Higgins involved a dispute over the parental responsibility and schooling of three children between the Applicant Mother and the Respondent Father. The matter was heard in the Family Court of Australia. The central issues in the case were the allocation of parental responsibility between the parties for each child and the determination of the schooling arrangements for one of the children.

The court was required to decide the extent of parental responsibility each parent should have over the children, given the parents' differing views on major long-term decisions affecting the children. The court also had to determine the appropriate school enrolment for one of the children, considering the parents' inability to agree on the matter. The court addressed these issues by assessing the evidence presented by both parties and applying the principles of the Family Law Act 1975, focusing on the best interests of the children.

After considering the evidence, the court determined that the Applicant Mother should have sole parental responsibility for the oldest child, with the requirement that she notify the Respondent Father of any major long-term decisions. For the two younger children, the court allocated equal shared parental responsibility between the parents, with a requirement for joint consultation with a family dispute resolution practitioner in the event of any disputes over major long-term issues. The court also ordered the immediate change of school for the youngest child, specifying the necessary actions for the parents to complete within a week.

In conclusion, the court made specific orders concerning the parental responsibility of each parent and the schooling arrangements for the youngest child. The Applicant Mother was granted sole parental responsibility for the oldest child, while the parents shared equal responsibility for the two younger children. The court further mandated a change in the youngest child's school enrolment and specified the actions required by the parents to effect this change.

Orders

Orders of the court

Order (1) made on 13 August 2012 is discharged.

The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 1995 but she must notify the Respondent father within seven (7) days of any major long-term decision she is required to make in respect of the child.

The Mother and the Father are to have equal shared parental responsibility for the children Y born (omitted) 1997 and Z born (omitted) 2001.

In the event that the parties are unable to come to a joint decision about any major long term issue concerning either of the children Y or Z they are to consult jointly with a family dispute resolution practitioner as defined by Section 10G of the Family Law Act 1975 and seek the assistance of the family dispute resolution practitioner to come to a joint decision about the major long term issue concerning either of the children Y or Z in dispute between them.

Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary for the child Z to discontinue his enrolment at (omitted) Public School with effect from the conclusion of Term 4 2012.

Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary to enable the child Z to be enrolled at (omitted) Public School with effect from the beginning of Term 1 2013.

The Independent Children’s Lawyer is discharged save for any argument in respect of costs.

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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