JAMES & MARA - [2014] FCCA 490

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMES & MARA

[2014] FCCA 490

Catchwords:
FAMILY LAW – Parenting order – consideration of primary and secondary factors.

FAMILY LAW – Property orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(a) and(b) and (3)(a), (b), (c) and (d), 60CG, 61DA, 61F, 65DAA, 65DAC, 65DAB, 75(2), 106A

Mental Health Act 1986 (Vic), s.10

Carpenter & Carpenter [2007] FMCAfam 16
Godfrey & Sanders [2007] FamCA 102
Markham & Markham & Ors [2010] FamCA 460
O’Loughlin & O’Loughlin (No.2) [2007] FamCA 1546
AJO v GRO (2005) 33 FamLR 134
P & P [2006] FMCAfam 518
M & K [2007] FMCAfam 214
M & S [2006] FamCA 1408

Applicant:

MS JAMES

Respondent:

MR MARA

File Number:

MLC 846 of 2012

Judgment of:

Judge Antoni Lucev

Hearing dates:

26 and 27 August 2013

Date of Last Submission:

27 August 2013

Delivered at:

Melbourne (by telephone)

Delivered on:

14 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr Richardson

Solicitors for the Applicant:

Waters & Co Lawyers

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Lampe Family Lawyers

ORDERS

That the Father and the Mother have equal shared parental responsibility for the long-term decisions regarding the care, welfare and development of the children, [X] born [in] 2003, [Y] born [in] 2005 and [Z] born [in] 2005 (“the Children”).
That the Children live with the Mother from after school Thursday until the commencement of school on the following Wednesday, such that the Children live with the Mother for 6 nights per fortnight.
That the Children shall live with the Father from after school on the following Wednesday until the commencement of school on the following Thursday, such that the Children live with the Father for 8 nights per fortnight.
That the Children spend time during school holiday periods with each party as agreed, but failing agreement as follows:
(a)with the Mother for one half of all gazetted school holiday periods, being the first half in odd-numbered years and in alternate years thereafter and the second half in even-numbered years and in alternate years thereafter;
(b)with the Father for one half of all gazetted school holiday periods, being the second half in odd-numbered years and in alternate years thereafter and the first half in even-numbered years and in alternate years thereafter; and
(c)in the event that any provision for time in this order is inconsistent with school holiday time, then such time shall be suspended.
That during the second half of the Christmas school holiday period the parent with whom the Children are then spending time may take the Children overseas for not more than fourteen (14) continuous days, and the other parent must sign all documents necessary to enable the Children to so travel.
That the Children spend time with each party during the Christmas period as agreed, but failing agreement as follows:
(a)with the Mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in the year 2013 and each alternate year thereafter;
(b)with the Father from 4.00pm Christmas Day until…

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 JAMES & MARA

Details

AGLC: James and Mara [2014] FCCA 490
Case: [2014] FCCA 490
Decision Date: 14 March 2014

CaseChat Overview and Summary

This matter concerned parenting and property orders sought by the Father and the Mother in relation to their three children. The proceedings were heard by Judge Antoni Lucev.

The court was required to determine the parenting arrangements for the children, specifically addressing issues of parental responsibility, living arrangements, and time spent with each parent during school holidays, Christmas, and birthdays. Additionally, the court needed to make orders regarding property matters, requiring the parties to either file a minute of consent orders or individual minutes of proposed orders.

The court made orders for equal shared parental responsibility for long-term decisions concerning the children's care, welfare, and development. The children were ordered to live with the Mother for six nights per fortnight and with the Father for eight nights per fortnight, with specific provisions for school holidays, Christmas, and birthdays, including arrangements for overseas travel and communication. Injunctions were imposed on both parties restraining them from denigrating the other in the presence of the children and from consuming alcohol or drugs for 24 hours prior to and during time spent with the children, with exceptions for prescribed medication and over-the-counter drugs. The court also made detailed orders concerning the exchange of information about the children's health, wellbeing, education, and extracurricular activities, and the provision of necessary items for the children during each parent's time.

In relation to property matters, the parties were ordered to file either a minute of consent orders or individual minutes of proposed orders within 28 days. If separate proposed orders were filed, the matter was to be listed for further mention within 14 days of such filing.

Orders

Orders of the court

That the Father and the Mother have equal shared parental responsibility for the long-term decisions regarding the care, welfare and development of the children, [X] born [in] 2003, [Y] born [in] 2005 and [Z] born [in] 2005 (“the Children”).

That the Children live with the Mother from after school Thursday until the commencement of school on the following Wednesday, such that the Children live with the Mother for 6 nights per fortnight.

That the Children shall live with the Father from after school on the following Wednesday until the commencement of school on the following Thursday, such that the Children live with the Father for 8 nights per fortnight.

That the Children spend time during school holiday periods with each party as agreed, but failing agreement as follows:

(a) with the Mother for one half of all gazetted school holiday periods, being the first half in odd-numbered years and in alternate years thereafter and the second half in even-numbered years and in alternate years thereafter;

(b) with the Father for one half of all gazetted school holiday periods, being the second half in odd-numbered years and in alternate years thereafter and the first half in even-numbered years and in alternate years thereafter; and

(c) in the event that any provision for time in this order is inconsistent with school holiday time, then such time shall be suspended.

That during the second half of the Christmas school holiday period the parent with whom the Children are then spending time may take the Children overseas for not more than fourteen (14) continuous days, and the other parent must sign all documents necessary to enable the Children to so travel.

That the Children spend time with each party during the Christmas period as agreed, but failing agreement as follows:

(a) with the Mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in the year 2013 and each alternate year thereafter;

(b) with the Father from 4.00pm Christmas Day until 4.00pm Boxing day in the year 2013 and each alternate year thereafter;

(c) with the Mother from 4.00pm Christmas Day until 4.00pm Boxing Day in the year 2014 and each alternate year thereafter;

(d) with the Father from 4.00pm Christmas Eve until 4.00pm Boxing Day in the year 2014 and each alternate year thereafter; and

(e) in the event that any provision for time in this order is inconsistent with Christmas period time, then such time shall be suspended.

That the Children spend time with the Father for no less than four hours on the Father’s birthday, Father’s Day and each of the Children’s birthdays to be agreed, and in default of agreement, from 11.00am to 3.00pm. Any provision under this order that is inconsistent with this paragraph be suspended.

That the Children spend time with the Mother for no less than four hours on the Mother’s birthday, Mother’s Day and each of the Children’s birthdays to be agreed, and in default of agreement, from 3.00pm to 7.00pm. Any provision under this order that is inconsistent with this paragraph be suspended.

That for the purposes of telephone communication pursuant to these orders:

(a) each party shall provide the other party with a telephone contact number and prompt notice of any change;

(b) both parties shall ensure that the Children are available for telephone contact as is reasonably requested by the other; and

(c) both parties shall permit the Children to telephone the other parent at all times as the Children reasonably request or the parties agree.

10.

Changeover for the purposes of these orders shall occur at the Children’s school during school terms and otherwise the Father shall deliver the Children to the Mother’s residence at the commencement of the Mother’s time with the Children and the Mother shall deliver the Children to the Father’s residence at the conclusion of her time with the Children.

11.

The Father and the Mother are hereby restrained from denigrating the other in the presence or hearing of any of the Children.

12.

For 24 hours immediately prior to the commencement of any time spent with the said Children, and during all such time spent, the parties be restrained by injunction from injecting, consuming or using, or otherwise being under the influence of, alcohol, and/or any legal or illegal drug or substance (or having a blood alcohol content above 0.00), save and except for:

(a) any legal medication prescribed for the relevant parties by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

13.

That the parties shall each inform the other as soon as is reasonably practicable of any serious illness or injury sustained by any or of the said Children whilst in their care and further provide particulars of any treatment required or received by any one or more of the Children together with the name and address of the treatment provider and of any location in which the child or those Children are hospitalised.

14.

That each party shall promptly provide the other party with the information about the health and wellbeing of the Children so that they both have the opportunity to be involved in any discussions which may arise with their Children’s medical advisers.

15.

That each party shall provide to the other the Children’s clothing, footwear, sporting wear, accessories, toiletries, musical and sporting equipment and any other items that may be in their possession that the Children may require while in the other party’s care.

16.

That if the Children have an opportunity to attend or participate in a special event during the other party’s time with the Children the other party shall be promptly provided with such information as is relevant to enable them to attend or respond on the Children’s behalf as they consider appropriate.

17.

That the party who receives the Children’s school reports shall forthwith provide copies thereof to the other party, or if the school is agreeable, authorise the school to provide copies of such reports directly to the other party at their cost.

18.

That each party shall upon receiving notification of any school or extra-curricular activities including but limited to concerts, parent-teacher interviews, excursions and camps promptly provide the other party with a copy of such notification or otherwise ensure that the other party receives notification in writing of such events.

19.

The provisions of ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) apply hereto.

20.

In relation to the property matters, and having regard to the Reasons for Judgment, the parties either:

(a) file a minute of consent orders; or

(b) each file a minute of proposed orders,

within 28 days.

21.

If the parties file a minute of proposed orders pursuant to order (20)(b) above the matter will be listed for further mention within 14 days of such filing.

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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