HIGGINS & HIGGINS - [2012] FMCAfam 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2012] FMCAfam 815

FAMILY LAW – Children – parenting – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – three children – daughter aged 17 years – sons aged 15 years and 10 years 8 months – where daughter living with mother – where sons living with father – whether equal time with each parent is in a child’s best interests and reasonably practicable – whether substantial and significant time with each parent is in a child’s best interests and reasonably practicable – where a family violence order was in force against the father in favour of the mother and daughter.

PRACTICE & PROCEDURE – Where parties offered the opportunity to make submissions about any circumstances that may have arisen since the hearing concluded.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA, 68L

Higgins & Higgins [2011] FMCAfam 326
Langan & Thurston [2012] FMCAfam 345
MRR v GR (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220; [2010] HCA 4

Applicant:

MS HIGGINS

Respondent:

MR HIGGINS

File Number:

SYC 5083 of 2010

Judgment of:

Scarlett FM

Hearing dates:

4-5 August 2011

Date of Last Submission:

5 September 2011

Delivered at:

Sydney

Delivered on:

13 August 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Reeve

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Aitken Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Fermanis

Solicitors for the Independent Children’s Lawyer:

Gonzalez & Co

ORDERS

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 2001.
The child [X] born [in] 1995 is to live with the Mother.
The child [X] is to spend such time with the Father as the child shall decide and the parties shall agree.
The Mother is permitted to travel outside the Commonwealth of Australia with the child [X] provided that she gives to the Father written notice of her intention to do so and provides to him an itinerary including details of the destination or destinations, flight numbers and times and an address or addresses where the child may be contacted whilst out of Australia no later than seven (7) days before the proposed date of departure from Australia.
The child [Y] born [in] 1997 is to live with the Father.
The child [Z] born [in] 2001 is to live with the Mother.
The child [Y] is to spend time with the Mother as follows:
(a)each alternate weekend during the school term from the conclusion of school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning;
(b)on the weekend that includes Mother’s Day in each year from the conclusion of…

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 815
Case: [2012] FMCAfam 815
Decision Date: 13 August 2012

CaseChat Overview and Summary

The matter involved a dispute between the Applicant Mother and the Respondent Father concerning parenting orders for their three children. The daughter, aged 17, was living with the mother, while the two sons, aged 15 and 10 years 8 months, were living with the father. The court was required to decide whether equal time with each parent was in the best interests of the children and reasonably practicable, and whether substantial and significant time with each parent was in the children's best interests and reasonably practicable. This was in the context of a family violence order being in force against the father in favour of the mother and the daughter.

The court considered the paramount consideration was the best interests of the children, and whether the children could spend substantial and significant time with each parent. The court examined the evidence and submissions from both parties, and found that the children had different relationships with each parent, and that the older children had expressed a preference to live with the father. The court also noted the family violence order, but found that it did not preclude the children from spending time with the father. The court concluded that it was in the best interests of the children to have equal shared parental responsibility, with the daughter living with the mother, the middle son living with the father, and the youngest son spending significant time with both parents. The court made detailed orders for the children's time with each parent, as well as orders for communication, travel, and other matters.

The court ordered that the mother and father have equal shared parental responsibility for the children. The daughter was to live with the mother, and the middle son was to live with the father. The youngest son was to spend substantial and significant time with both parents, with detailed arrangements set out in the orders. The mother was permitted to travel outside Australia with the daughter, provided she gave the father written notice and an itinerary. The father was permitted to travel outside Australia with the two sons, provided he gave the mother written notice and an itinerary. The court also made orders for communication between the children and each parent, travel with the children, and other matters such as school reports, school functions, and changes of contact details or address. The parties were restrained from using the children to pass messages, discussing the orders or proceedings with the children, or denigrating or criticising each other or members of each other’s family to the children or in their presence or hearing. The Registrar was directed to release the children's passports to the appropriate parent.

Orders

Orders of the court

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 2001.

The child [X] born [in] 1995 is to live with the Mother.

The child [X] is to spend such time with the Father as the child shall decide and the parties shall agree.

The Mother is permitted to travel outside the Commonwealth of Australia with the child [X] provided that she gives to the Father written notice of her intention to do so and provides to him an itinerary including details of the destination or destinations, flight numbers and times and an address or addresses where the child may be contacted whilst out of Australia no later than seven (7) days before the proposed date of departure from Australia.

The child [Y] born [in] 1997 is to live with the Father.

The child [Z] born [in] 2001 is to live with the Mother.

The child [Y] is to spend time with the Mother as follows:

(a) each alternate weekend during the school term from the conclusion of school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning;

(b) on the weekend that includes Mother’s Day in each year from the conclusion of school on the Friday until the commencement of school on the Monday morning;

(d) on [Y]’s birthday from after school until 7:00pm if on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Mother as provided by these Orders;

(e) on the birthday of the child [X] from after school until 7:00pm if that day falls on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Mother as provided by these Orders;

(f) for the second half of the Autumn, Winter and Spring school holidays in 2012 and all even numbered years thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the last day before the child is due to return to school;

(g) for the first half of the Autumn, Winter and Spring school holidays in 2013 and all odd numbered years thereafter commencing at the conclusion of school on the last day of the school term and concluding at 9:00am on the middle Saturday of the school holiday period;

(h) from 4:00pm on Christmas Day until 4:00pm on Boxing Day in 2012 and all even numbered years thereafter;

(i) from 4:00pm on Christmas Eve until 4:00pm on Christmas Day in 2013 and all odd numbered years thereafter;

(j) from 2 January until 23 January in each year; and

(k) at such other times as the parties may agree.

For the purpose of giving effect to the above Order the weekends that the child [Y] spends with the Mother shall be the same weekends as the child [Z] remains living with the Mother.

The Father is to ensure that [Y] is permitted to communicate with the Mother and with his sister [X] by telephone at any reasonable time.

10.

The child [Z] is to spend time with the Father as follows:

(a) each other weekend during the school term not being the weekend when [Y] is spending time with the Mother as provided by Order (7)(a) above from the conclusion of school on the Friday until the commencement of school on the Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning;

(b) on the weekend that includes Father’s Day in each year from the conclusion of school on the Friday until the commencement of school on the Monday morning;

(c) on the Father’s birthday from after school until 7:00pm if on a school day or from 12 noon until 3:00pm if the day falls on a weekend when the child would not otherwise be spending time with the Father as provided by these Orders;

(d) for the first half of the Autumn, Winter and Spring school holidays in 2012 and all even numbered years thereafter commencing at the conclusion of school on the last day of the school term and concluding at 9:00am on the middle Saturday of the school holiday period of the school holiday period;

(e) for the second half of the Autumn, Winter and Spring school holidays in 2013 and all odd numbered years thereafter commencing at 9:00am on the middle Saturday of the school holiday period and concluding at 6:00pm on the last day before the child is due to return to school;

(f) from 4:00pm on Christmas Eve until 4:00pm on Christmas Day in 2012 and all even numbered years thereafter;

(g) from 4:00pm on Christmas Day until 4:00pm on Boxing Day in 2013 and all odd numbered years thereafter;

(h) on the weekend that includes Greek Orthodox Easter Saturday and Greek Orthodox Easter Sunday in each year from 6:00pm on the Friday evening until 9:00am on the morning of Greek Orthodox Easter Monday; and

(i) from the conclusion of school on the last day of the final school term in December each year until 4:00pm on Christmas Eve in 2012 and all even numbered years thereafter and until 4:00pm on Christmas Day in 2013 and all odd numbered years thereafter;

(j) on such of the days in the school holidays in January each year that the child [Y] is not spending time with the mother as provided by Order (7)(j) above; and

(k) at such other times as the parties may agree.

11.

The mother is to ensure that [Z] is permitted to communicate with the Father by telephone at any reasonable time.

12.

TO AVOID DOUBT it is the intention of these Orders that the children [Y] and [Z] will spend weekend days, school holiday time, special days including birthdays, Mother’s Day, Father’s Day, Christmas Eve, Christmas Day, Boxing Day, Greek Orthodox Easter Saturday and Greek Orthodox Easter Sunday together no matter with which parent they are spending time according to these Orders.

13.

Each party must inform the other of any illness or injury to any of the children requiring medical or hospital treatment and any medication prescribed for any of the children as soon as practicable.

14.

Each party must inform the other of any proposed change of residential address no later than seven (7) days before any such change.

15.

Each party must inform the other of any change to their landline or mobile telephone numbers or email address within twenty-four (24) hours of such change.

16.

Each party is permitted to obtain from the children’s schools copies of all school reports, newsletters, information about school photographs and other documents usually provided by the school to parents of children attending that school.

17.

Each party is permitted to attend any school function at which parents of children attending that school normally attend.

18.

Each party is permitted to arrange his or her individual interview with the children’s school teachers at such time as the children’s school normally conducts parent-teacher interviews.

19.

The parties are restrained by injunction from:

(a) using any of the children to pass messages to the other party;

(b) discussing these Orders or these proceedings with any of the children; or

(c) denigrating or criticising each other or members of each other’s family to any of the children or in the presence or hearing of any of the children.

20.

The Registrar is to release to the Mother the passports of the children [X] and [Z].

21.

The Registrar is to release to the Father the passport of the child [Y].

22.

The parties are each permitted to travel outside the Commonwealth of Australia with the children [Y] and [Z] provided that each one gives to the other written notice of their intention to do so and provides to the other party an itinerary including details of the destination or destinations, flight numbers and times and an address or addresses where the children may be contacted whilst out of Australia no later than twenty-one (21) days before the proposed date of departure from Australia.

23.

In order to give effect to the above Order each parent must provide to the other the passport of the child [Y] or the child [Z] whichever the case may be no later than fourteen (14) days prior to the proposed date of departure from Australia.

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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