JANCOS & CAGNEY - [2019] FCCA 3111

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANCOS & CAGNEY

[2019] FCCA 3111

Catchwords:
FAMILY LAW – Parenting – equal shared care arrangement – where child wishes for the status quo to remain – Mother seeking primary care – Father seeking continuation of equal shared care arrangement – significant parental conflict – lack of parental communication – issues as to schooling – where the child should complete her primary schooling – where the child should commence high school – best interests of the child.

Legislation:

Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC, 60CC(2), 60CC(3), 65D, 65DAA

Cases cited:

Beckham & Desprez [2015] FamCAFC 247
Grella & Jamieson [2017] FamCAFC 21
Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115

Applicant:

MS JANCOS

Respondent:

MR CAGNEY

File Number:

MLC 5658 of 2018

Judgment of:

Judge Carter

Hearing dates:

2, 3, 4, & 5 September 2019

Date of Last Submission:

8 October 2019

Delivered at:

Melbourne

Delivered on:

30 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Wheeler

Solicitors for the Applicant:

Resolve Conflict Lawyers

Counsel for the Respondent:

Ms Dellidis

Solicitors for the Respondent:

MST Lawyers

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born … 2009 (“X”).
During school terms, X live with her Mother.
During school terms, X spend time with her Father on a two week rotating cycle as follows:-
(a)in week one and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Monday, or to the commencement of school (or 9.00am) on Tuesday if Monday is a non-school day;
(b)in week two and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Friday; and
(c)at such further or other times as may be agreed between the parties from time to time.
Unless otherwise agreed, both parties do all such acts and things and sign all such documents to enrol X in or retain her enrolment at school as follows:-
(a)at U Primary School for 2019 and 2020; and
(b)at A High School to commence in 2021.

BY CONSENT, THE COURT ORDERS THAT:

X spend time and communicate with the parties on school holidays and special occasions as follows:-
(a)during the term one Easter school holidays, if the Easter weekend falls on the first week of the school holiday period:-
(i)with the Mother from the conclusion of school on the final day of school term until 5.00pm on the second Monday of the school holiday period; and
(ii)with the Father for the remainder of the school holiday period until the commencement of school on the first day of second term;
(b)during the term one Easter school holidays, if the Easter weekend falls on the second or third weekend of the school holiday period:-
(i)with the Father 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 JANCOS & CAGNEY

Details

AGLC: Jancos and Cagney [2019] FCCA 3111
Case: [2019] FCCA 3111
Decision Date: 30 October 2019

CaseChat Overview and Summary

This matter concerned parenting orders for a child, X, born in 2009. The mother sought primary care, while the father sought to continue an equal shared care arrangement. The case was heard by Judge Carter in the context of significant parental conflict and a lack of communication between the parties, with issues arising concerning X's schooling and where she should complete her primary education and commence high school.

The court was required to determine the best interests of the child, X, in light of the parental conflict and the child's wishes for the status quo to remain. Specifically, the court had to decide on the appropriate living arrangements for X during school terms and holidays, as well as the schooling arrangements for both primary and secondary education. The court also needed to address communication and information sharing between the parents regarding X's wellbeing and education.

The court's reasoning led to the discharge of all previous parenting orders and the establishment of equal shared parental responsibility for X. During school terms, X was ordered to live with her mother and spend time with her father on a two-week rotating cycle. The parties were ordered to enrol X at U Primary School for 2019 and 2020 and at A High School to commence in 2021. Detailed provisions were made for X's time with each parent during school holidays and on special occasions, including birthdays. The court also made orders for ongoing communication and information sharing between the parents regarding X's health, education, and general wellbeing, and restrained both parties from denigrating each other in X's presence. All extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders be discharged.

The parties have equal shared parental responsibility for the child X born … 2009 (“X”).

During school terms, X live with her Mother.

During school terms, X spend time with her Father on a two week rotating cycle as follows:-

(a) in week one and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Monday, or to the commencement of school (or 9.00am) on Tuesday if Monday is a non-school day;

(b) in week two and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Friday; and

Unless otherwise agreed, both parties do all such acts and things and sign all such documents to enrol X in or retain her enrolment at school as follows:-

(a) at U Primary School for 2019 and 2020; and

(b) at A High School to commence in 2021.

BY CONSENT, THE COURT ORDERS THAT:

X spend time and communicate with the parties on school holidays and special occasions as follows:-

(a) during the term one Easter school holidays, if the Easter weekend falls on the first week of the school holiday period:-

(i) with the Mother from the conclusion of school on the final day of school term until 5.00pm on the second Monday of the school holiday period; and

(ii) with the Father for the remainder of the school holiday period until the commencement of school on the first day of second term;

(b) during the term one Easter school holidays, if the Easter weekend falls on the second or third weekend of the school holiday period:-

(i) with the Father from the conclusion of school on the final day of school term until 5.00pm on the first Thursday of the school holiday period; and

(ii) with the Mother for the remainder of the school holiday period until the commencement of school on the first day of second term;

(c) with each party for one half of the end of term two and term three school holiday periods as agreed, and failing agreement, with the Father from the conclusion of school on the final day of school term until 5.00pm on whichever day constitutes the midpoint of the school holiday period;

(d) in odd numbered years, for the Christmas period and long summer school holiday period as follows:-

(i) with the Father from the conclusion of school on the final day of fourth term until 10.00am on Boxing Day;

(ii) with the Mother from 10.00am on Boxing Day until 10.00am on 2 January;

(iii) with the Father from 10.00am on 2 January until 5.00pm on whichever day constitutes the midpoint of the remainder of the long summer holiday period; and

(iv) with the Mother for the remainder of the long summer holiday period until the commencement of school on the first day of the first school term;

(e) in even numbered years, for the Christmas period and long summer school holiday period as follows:-

(i) with the Father from the conclusion of school on the final day of fourth term until 10.00am on Boxing Day;

(ii) with the Mother from 10.00am on Boxing Day until 10.00am on 28 December;

(iii) with the Father from 10.00am on 28 December until 5.00pm on whichever day constitutes the midpoint of the remainder of the long summer holiday period; and

(iv) with the Mother for the remainder of the long summer holiday period until the commencement of school on the first day of the first school term;

(f) X is to communicate with the Mother by telephone, video-call or electronically (such as WhatsApp or Messenger) on Christmas Day for a period of thirty minutes as agreed between the parties, and failing agreement, from 10.00am until 10.30am; and

(g) at such further or other times as may be agreed between the parties from time to time.

Notwithstanding any other order:-

(a) X is to spend the Mother’s birthday with the Mother from the conclusion of school (or 10.00am if a non-school day) on the Mother’s birthday until the commencement of school (or 10.00am if a non-school day) the following day;

(b) X is to spend the Father’s birthday with the Father from the conclusion of school (or 10.00am if a non-school day) on the Father’s birthday until the commencement of school (or 10.00am if a non-school day) the following day;

(c) X is to spend Mother’s Day with the Mother and Father’s Day with the Father from 5.00pm the preceding day until 4.00pm on Mother’s Day or Father’s Day respectively;

(d) on X’s birthday:-

(i) in odd numbered years, X spend her birthday with the Mother from the conclusion of school (or 10.00am if a non-school day) on her birthday until the commencement of school (or 10.00am if a non-school day) the following day; and

(ii) in even numbered years, X spend her birthday with the Father from the conclusion of school (or 10.00am if a non-school day) on her birthday until the commencement of school (or 10.00am if a non-school day) the following day; and

(e) at such further or other times as may be agreed between the parties from time to time.

X’s usual arrangements during school terms be suspended during school holidays and recommence at the commencement of the school term as if the suspension had not occurred.

Each of the Mother and the Father do all such acts and things necessary to keep the other fully informed at all times in relation to:-

(a) the address at which X is living;

(b) their contact telephone numbers and email address;

(d) any significant issue or event in relation to X’s health, wellbeing or development of importance to X.

10.

Each of the Mother and the Father:-

(a) immediately notify the other of any serious illness or injury experienced by X requiring medical treatment whilst X is in their care;

(b) forthwith inform the other of any medical, dental or other health practitioner with whom X is scheduled to consult with or has consulted with and authorise the other parent to make all reasonable enquiries of such practitioner/s concerning X’s health; and

(c) forthwith provide the other copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by X.

11.

Each of the Mother and the Father are hereby authorised to:-

(a) receive information, notices, reports, class lists and family contact details and photographs directly from X’s school and/or any other associated provider of extra-curricular or sporting activities attended by X;

(b) attend all events parents are invited to and permitted to attend including, but not limited to, open days, concerts, parent-teacher interviews, sports days and like events; and

(c) provide a copy of these orders to any school and/or the provider of any extra-curricular activity or sporting event attended by X.

12.

Each of the parties be and are hereby restrained from denigrating the other to or in the presence or hearing of X.

THE COURT FURTHER ORDERS THAT:

13.

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

14.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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