HOOPER & EVAN - [2011] FMCAfam 365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOOPER & EVAN

[2011] FMCAfam 365

FAMILY LAW – Children – parenting orders – two children – school holidays – best interests of the children – equal shared parental responsibility – equal time – substantial and significant time.

FAMILY LAW – Name of child – children’s surname – application to change children’s surname.

Family Law Act 1975, ss.11C, 60CA, 60CC,61B, 61C, 61DA, 61DB, 65D, 65DAA, 65E

Beach and Stemmler (1979) FLC 90-692
Chapman v Palmer (1978) FLC 90-510; 4 Fam LR 462
Flanagan & Handcock [2000] FamCA 150; (2001) FLC 93-074
Devlin & Barta [2007] FamCA 512
Healey & McGeary [2007] FamCA 501
Astil & Sampson [2008] FamCAFC 15
Holmen & Farley [2008] FamCA 197
Barker & Ferris [2008] FamCA 1112
Raymond & Harold [2009] FamCA 155
Tommy & Harris [2009] FamCA 278
Maluka & Maluka [2009] FamCA 647
Maraichers & Tesson [2009] FamCA 780
Mahony and McKenzie (1993) FLC 92-408

Applicant:

MR HOOPER

Respondent:

MS EVAN

File Number:

SYC 5472 of 2010

Judgment of:

Scarlett FM

Hearing date:

20 December 2010

Date of Last Submission:

20 December 2010

Delivered at:

Sydney

Delivered on:

28 April 2011

REPRESENTATION

Solicitor for the Applicant:

Mr Mockler

Solicitors for the Applicant:

Stewart Cuddy & Mockler

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Eleanor Murphy & Company

ORDERS

The parties are to have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2004.
The children [X] and [Y] are to live with the Respondent Mother.
The children are to spend time with the Father:
(a)each alternate weekend during the school term from after school on Friday until the commencement of school on Monday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until the commencement of school on the Tuesday;
(b)for half of each of the Autumn, Winter and Spring school holidays in each year being the first half in even-numbered years and the second half in odd-numbered years;
(c)during the Christmas/January school holidays:
(i)
from 9:00am on Christmas Eve 2011 until 5:00pm on

8 January 2012 and each alternate year thereafter; and
(ii)from 9:00am on 9 January 2013 until 5:00pm on Australia Day in 2013 and each alternate year thereafter;
(d)On each of the children’s birthdays if that birthday falls on a school day not being a day when the children would normally be with the Father according to these Orders from immediately after school on the day before the birthday until the commencement of school the following morning;
(e)On the Father’s birthday if that day falls on a day when the children would not normally be with the Father according to these Orders from immediately after school until the commencement of school the following morning;
(f)On Father’s Day if that day should fall on a day when the children would not normally be with the Father according to these orders from 9:00am to 5:00pm; and
(g)At such other times as 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 HOOPER & EVAN

Details

AGLC: HOOPER & EVAN [2011] FMCAfam 365
Case: [2011] FMCAfam 365
Decision Date: 28 April 2011

CaseChat Overview and Summary

The case of Hooper & Evan involved the dispute between the parents of two children over parenting arrangements and the children's surnames. The Family Court was tasked with determining the best interests of the children, the allocation of parental responsibility, and the specific arrangements for the children's time with each parent, as well as the children's surnames.

The legal issues before the court included whether the parents should have equal shared parental responsibility, the specific time the children should spend with each parent, and whether the children's surnames should be changed. The court had to weigh the principles of equal shared parental responsibility and the substantial and significant time principle, considering the evidence presented by both parties regarding the children's best interests.

The court found that it was in the best interests of the children for the parties to have equal shared parental responsibility. It determined a detailed parenting schedule that ensured the children would spend substantial and significant time with both parents, including specific arrangements for school holidays and special occasions. The court also ruled that the children's surnames should be changed to include the father's surname, reflecting the equal contribution of both parents to their lives.

The final orders of the court mandated equal shared parental responsibility, specified the children's living arrangements and detailed time-sharing schedule with the father, and required both parties to manage the children's health and educational matters collaboratively. Additionally, the court enjoined the parties from speaking negatively about each other in front of the children and required them to update the children's surnames.

Orders

Orders of the court

The parties are to have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2004.

The children [X] and [Y] are to live with the Respondent Mother.

The children are to spend time with the Father:

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

(b) for half of each of the Autumn, Winter and Spring school holidays in each year being the first half in even-numbered years and the second half in odd-numbered years;

(i)

from 9:00am on Christmas Eve 2011 until 5:00pm on

8 January 2012 and each alternate year thereafter; and

(ii) from 9:00am on 9 January 2013 until 5:00pm on Australia Day in 2013 and each alternate year thereafter;

(d) On each of the children’s birthdays if that birthday falls on a school day not being a day when the children would normally be with the Father according to these Orders from immediately after school on the day before the birthday until the commencement of school the following morning;

(e) On the Father’s birthday if that day falls on a day when the children would not normally be with the Father according to these Orders from immediately after school until the commencement of school the following morning;

(f) On Father’s Day if that day should fall on a day when the children would not normally be with the Father according to these orders from 9:00am to 5:00pm; and

(g) At such other times as the parties shall agree.

NOTWITHSTANDING THE PROVISIONS OF ORDER (3) ABOVE, the Father’s time with the children will be suspended:

(a) On Mother’s Day from 9:00am to 5:00pm;

(b) On the Mother’s birthday from the evening before the birthday until 5:00pm on the birthday; and

Each party may communicate with the children by telephone at any reasonable time when the children are in the care of the other party at times provided by these Orders.

Each party shall permit the children or either of them to telephone the other at any reasonable time when the children are in the care of the other party at times provided by these Orders.

For the purposes of Order 3 the Father will collect the children from school and return them to school at times as provided by the Orders and at all other times the Mother will deliver the children to the Father’s residence at the commencement of the time the children spend with the Father and the Father will return the children to the Mother’s residence at the conclusion of the time provided by the Orders.

Each party will do all things necessary to deal with any health problems which arise with either child including but not limited to asthma attacks or ill health which may lead to asthma attacks and will consult and obtain treatment for the child from a medical practitioner or other health professional.

The Father is to take each child to a dentist for a check-up each year at his expense.

10.

Each party will provide to the other the name and contact details of any medical practitioner, dentist, counsellor or health professional upon whom one or other of the children attends whilst in the care of that party.

11.

The Father and the Mother must communicate with each other by text message or email in relation to any health or medical issue relating to the children or either of them whilst that child or the children is in that party’s care.

12.

Each party is entitled to receive from the school attended by the children copies of all school reports, newsletters, information about school photographs and other documents normally provided to parents of children attending that school.

13.

Each party may attend any parent teacher interview, school sporting carnival, assembly or other school activity normally attended by parents of children attending that school.

14.

The Father shall make all reasonable endeavours to ensure that the children attend any sporting commitment, school function or social function that takes place on a weekend when the children are spending time with him as provided by Order (3)(a) above.

15.

The parties are restrained by injunction from denigrating or criticising each other in the presence or hearing of the children or from permitting any third party from doing so.

16.

The names of the children shall be [X] EVAN HOOPER and [Y] EVAN HOOPER and the parties shall do all things necessary to advise the Registrar of Births Deaths and Marriages of the children’s new surnames as soon as is reasonably practicable.

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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