JOHN & DANE - [2007] FMCAfam 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHN & DANE

[2007] FMCAfam 93

FAMILY LAW – Children – parenting orders – preschool child.

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(3), 60CC(3)(b)(d)(e) 4, 4A, 60CG, 61DA, 60DA(1), 64B, 65D, 65DAA, 65DAB

Applicant:

MR JOHN

Respondent:

MS DANE

File Number:

BRM 8285 of 2005

Judgment of:

Slack FM

Hearing date:

13 February 2007

Date of Last Submission:

13 February 2007

Delivered at:

Brisbane

Delivered on:

14 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Murdochs Lawyers

Counsel for the Respondent:

Ms Pointing

Solicitors for the Respondent:

Hemming & Hart Lawyers

ORDERS

That all previous Orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child.
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
That except as otherwise ordered, the child [X] born [in] 2004 is to live with the Mother.

Time with the other parent

That the child is to spend time with (and/or live) and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a)each alternate week:
(i)during 2007 and 2008 from 5.00pm Friday until 5.00pm Sunday, to continue fortnightly thereafter;
(ii)from 2009 and thereafter, from the conclusion of school on Friday until the commencement of school on Monday with such time to start on Thursday if the Friday is a public holiday or pupil free day and conclude on Tuesday if the Monday is a holiday or pupil free day, to continue fortnightly thereafter, until the commencement of any school holiday period;
(b)during 2007 each Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;
(c)during 2008 each Wednesday after the weekend time in Order 6(a) from 3:00pm until the following morning with the Father to collect the child from kindergarten and return the child to the kindergarten and each other Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;
(d)from 2009 each Wednesday from after school until the commencement of school the following morning with the Father to collect the child from…

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 JOHN & DANE

Details

AGLC: JOHN & DANE [2007] FMCAfam 93
Case: [2007] FMCAfam 93
Decision Date: 14 March 2007

CaseChat Overview and Summary

The case involves John (the Father) and Dane (the Mother) who are the parents of a child born in 2004. The primary dispute revolves around the arrangements for the child's care, welfare, and development, as well as the time the child will spend with each parent. The Family Court of Australia was tasked with determining these parenting arrangements and issuing orders that best serve the child's interests.

The key legal issues before the court included the allocation of parental responsibilities, the specific terms of shared parental responsibility, and the detailed schedule for the child's time with each parent. The court had to consider the welfare and best interests of the child as the paramount concern, ensuring that the arrangements provided a stable and supportive environment for the child's growth and development.

The court determined that both parents should have equal shared parental responsibility for the major long-term issues of the child. It established that the parents must consult with each other and make a genuine effort to come to joint decisions regarding the child. Daily care, welfare, and development responsibilities were allocated to the respective parent with whom the child was living. The child was to primarily reside with the Mother, with specific arrangements for the Father's visitation rights. These included detailed schedules for weekend and holiday time, as well as special occasions such as Christmas Day and the child's birthday. The court also outlined the procedures for collection and delivery of the child between parents, and emphasized the importance of respecting each other's privacy and personal lives.

In addition to the parenting arrangements, the court made orders regarding communication between the parents, medical and educational information sharing, and the process for resolving future disputes. The Mother was permitted to remove the child from Australia once a year, subject to specific conditions including the deposit of a passport with the court registry and the payment of a sum into an interest-bearing account. The court also mandated the use of Family Dispute Resolution Practitioners to assist in resolving any future disagreements between the parents.

The final orders discharged all previous orders and established the new parenting arrangements, consultation and communication protocols, and dispute resolution mechanisms. This comprehensive approach aimed to provide a clear and structured framework to support the child's well-being and facilitate cooperative co-parenting.

Orders

Orders of the court

That all previous Orders be discharged.

That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child.

That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) they shall inform the other parent about the decision to be made;

(b) they shall consult with each other on terms that they agree;

That notwithstanding the provisions of Order 2:

(a) the Mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her;

(b) the Father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

That except as otherwise ordered, the child [X] born [in] 2004 is to live with the Mother.

Time with the other parent

That the child is to spend time with (and/or live) and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:

(a) each alternate week:

(i) during 2007 and 2008 from 5.00pm Friday until 5.00pm Sunday, to continue fortnightly thereafter;

(ii) from 2009 and thereafter, from the conclusion of school on Friday until the commencement of school on Monday with such time to start on Thursday if the Friday is a public holiday or pupil free day and conclude on Tuesday if the Monday is a holiday or pupil free day, to continue fortnightly thereafter, until the commencement of any school holiday period;

(b) during 2007 each Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;

(c) during 2008 each Wednesday after the weekend time in Order 6(a) from 3:00pm until the following morning with the Father to collect the child from kindergarten and return the child to the kindergarten and each other Wednesday from 3:00pm until 6:00pm with the Father to collect the child from kindergarten and return the child to the Mother at the [H] Police Station;

(d) from 2009 each Wednesday from after school until the commencement of school the following morning with the Father to collect the child from school and return the child to school;

(e) from 2009, Order 6(a)(ii) and (d) shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences, determined as if the sequence had not been interrupted;

School holidays

(f) until 2009, the Father spend time with the child for four (4) non- consecutive three (3) day block periods of holiday time per year with such time to not occur between 24 and 26 December and not be added to a period of weekend time and the Father is to give the Mother at least 28 days notice in writing of his intention to exercise that time;

(g) from 2009 and thereafter, for one half of all school holiday periods:

(i) being the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years; and

(ii) the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years;

(h) for the purposes of these Orders, the school holiday time shall commence:

(i) if the Father’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;

(ii) if the Father’s time falls in the second half of the holidays, from 9.00am on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences;

(iii) school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the Father shall retain the additional night;

Specific time for the Father

(i) on Christmas Day:

(i) from 9.00am Christmas Eve until 2.00pm Christmas Day in even numbered years;

(ii) from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years;

(j) on the birthday of the child:

(i) if a school day, from 3.00pm until 6.00pm;

(ii) if a non-school day, from 1.00pm until 6.00pm;

(k) on Father’s Day (if a non-contact week-end), from 9.00am to 5.00pm;

(l) after 2008 on the telephone at such times as the child reasonably requests but otherwise between 6:30pm and 7:00pm on alternate Sundays and in relation to such communication the Mother shall:

(i) ensure that the child is available to receive the telephone call;

(ii) arrange for the child to telephone the Father on the following night if, for any unforeseen circumstance, the child misses the telephone call from the Father;

(iii) ensure that the child has privacy during the conversation.

Collection and delivery

That except as otherwise ordered, the Father shall collect the child from and return the child to school or kindergarten.

That if the child is not attending school or kindergarten, the child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at the [H] Police Station.

That if the child is not attending school, the child shall be collected by the Mother or her nominee from the Father or his nominee at the conclusion of his time with the child at the [H] Police Station.

10.

That each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.

Specific time for the Mother

11.

That until 2009 the Mother shall be at liberty to suspend the Father’s time with the child for a period of two (2) weeks twice in each year upon the giving of 28 days notice to the Father in writing.

12.

That in the event the child is in the care of the Father on Mother’s Day, the birthday of the child or Christmas Day, then the Father shall return the child to the Mother:

(a) at 9.00am on Christmas Eve in odd numbered years and 2.00pm Christmas Day in even numbered years;

(b) at 9.00am on Mother’s Day;

to allow the Mother to spend time with the child on the same terms as the Father under the terms of these Orders.

Specific issues

13.

That the Mother and Father shall:

(a) keep the other parent informed at all times of their residential address and landline contact telephone number;

(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child;

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

14.

That the parents authorise, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

15.

That during the time the child is with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

16.

That the Mother be permitted to remove the child from Australia on one occasion in each year but subject to the following conditions:

(a) That the trip occur during times that do not interfere with the time that the child spends with the Father under these Orders.

(b) That, pursuant to s.67ZD of the Family Law Act, the Mother deposit with the Registry Manager of this Court at Brisbane any passport that she holds for the child [X] or any other passport which would enable the child to be removed from the Commonwealth of Australia.

(c) That the Registry Manager must hold any Australian Passport deposited in safe custody until the Mother deposits the sum of $15,000.00 into the Trust Account of Murdoch Lawyers.

(d) That upon the Registry Manager receiving written confirmation from Murdoch Lawyers of the receipt of the said $15,000.00 the passport can be released to the Mother.

(e) That if the Mother pays the $15,000.00 pursuant to order 16(c) the current Pace Alert for the child [X] be suspended for the period that the Mother travels to the Philippines and the Mother be at liberty to travel to the Philippines with the child during that period.

(f) That the Mother deposit with the Registry Manager of this Court at Brisbane the passport released to her for the child [X] within 24 hours of her return to Australia.

(g) That if the Mother fails to return to Australia on the date stipulated by her without reasonable excuse, Murdoch Lawyers are authorised to release the money held in the Trust Account to the Father.

(h) That the monies be held in an Interest Bearing Account for the Mother pending the safe return of the Child to the Commonwealth of Australia but subject to any further Order of the Court.

(i) That the parties sign all such documents as are necessary to enable the Trustees to invest the monies in an Interest Bearing Account.

(j) That the mother shall:

(i) provide the Father with a copy of her itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for her and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to scheduled departure;

(ii) provide to the Father a copy of the return air tickets for the child;

(iii) during the trip, arrange for the child to telephone the other parent on at least one occasion in each week.

17.

That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:

(a) The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.

(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally.

(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.

(d) The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.

(e) If the Father fails to choose, then the Mother may choose.

18.

That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in Order 17.

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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