Johnston & Pritchard - [2011] FMCAfam 1082

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSTON & PRITCHARD

[2011] FMCAfam 1082

FAMILY LAW – Parenting – 5 year old boy – child’s relationship with each of his parents – willingness of each parent to encourage the child’s relationship with the other parent – parental capacity – the impact of conflict between the parents on the child – importance of stability for the child’s parenting arrangements.

Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA(1), 61DA(2), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5)

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Applicant:

MR JOHNSTON

Respondent:

MR PRITCHARD

File Number:

SYC 4591 of 2008

Judgment of:

Walker FM

Hearing dates:

24 & 25 February 2011, 3 & 4 May 2011, 16 June 2011 & 11 August 2011

Date of Last Submission:

11 August 2011

Delivered at:

Sydney

Delivered on:

12 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Livingston (in part)

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

Paltos Briggs

Counsel for the Independent Children’s Lawyer:

Mr Gilbert

Solicitors for the Independent Children’s Lawyer:

Slade Manwaring Solicitors

THE COURT ORDERS THAT:

The parents are to have equal shared parental responsibility for the child X born (omitted) 2006, except as follows:
(a)The parents are to consult with one another about any treatment recommended for X by any medical specialist and in the event that the parents are unable to agree about the recommended treatment, the final decision is to be made by the father.
(b)The father is solely responsible for arranging for X to attend any consultations with any counsellor or therapist or any psychologist or medical professional for the purposes of providing counselling or therapy for X.
X is to live with his father commencing from Friday 21 October 2011.
Unless otherwise agreed, X is to spend time with his mother as follows:
(a)During the school term, on a two (2) week cycle as follows:
(i)In week one from after school on Friday, to before school on Monday, and
(ii)In week 2 from after school on Monday to before school on Tuesday.
(iii)Week one is to commence on Friday 28 October 2011.
(iv)These orders are to be suspended during the school holidays, and the mother’s time with X is to commence on the Friday of the first week in each new school term.
(b)In school holidays:
(i)For the first half of each of the school holidays at the conclusion of term 1, term 2 and term 3.
(ii)For half of the Christmas school holidays, being for the second half of the Christmas school holidays commencing in odd numbered years and for the first half of the Christmas school holidays commencing in even numbered years.
Special Days, unless otherwise agreed:
(a)X is to spend time with his mother from 9.00 am to 5.00 pm on Mother’s day if he is not otherwise in his mother’s care on that day;…

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 Johnston & Pritchard

Details

AGLC: Johnston & Pritchard [2011] FMCAfam 1082
Case: [2011] FMCAfam 1082
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the case of Johnston & Pritchard, the court dealt with an application for parenting orders regarding the child X, born in 2006. The dispute centred on the allocation of parental responsibilities, the living arrangements for the child, and the specifics of the contact arrangements between X and each parent. The matter was heard in the Family Court of Australia. The legal issues before the court included determining the allocation of parental responsibility, the living arrangements for the child, and the specific contact arrangements between X and each parent. The court also had to decide on special occasions for contact, medical treatment decisions, overseas travel, and restrictions on certain behaviours of the parents.

The court considered the welfare and best interests of the child to be the paramount consideration in making its determinations. The judge noted that the child was young and would benefit from a stable and supportive environment. The court found that equal shared parental responsibility was in the child’s best interests, with specific provisions for making decisions about medical treatment and contact during school holidays. The court determined that the child should primarily reside with the father but outlined a detailed schedule for the mother's visitation rights, particularly during school terms and holidays. The court also imposed restrictions on the parents' conduct, including a prohibition on derogatory remarks, alcohol consumption by the mother during visitation, and restrictions on overseas travel and school enrolment changes without mutual consent.

The final orders of the court provided for equal shared parental responsibility with specific provisions for medical decision-making and contact arrangements. The child was to primarily reside with the father, with detailed visitation rights for the mother during school terms and holidays. The court also imposed restrictions on the parents' conduct to protect the child's welfare and ensure a stable environment. Additionally, the father was ordered to pay half of the costs of the Independent Children's Lawyer.

Orders

Orders of the court

The parents are to have equal shared parental responsibility for the child X born (omitted) 2006, except as follows:

(a) The parents are to consult with one another about any treatment recommended for X by any medical specialist and in the event that the parents are unable to agree about the recommended treatment, the final decision is to be made by the father.

(b) The father is solely responsible for arranging for X to attend any consultations with any counsellor or therapist or any psychologist or medical professional for the purposes of providing counselling or therapy for X.

X is to live with his father commencing from Friday 21 October 2011.

Unless otherwise agreed, X is to spend time with his mother as follows:

(a) During the school term, on a two (2) week cycle as follows:

(i) In week one from after school on Friday, to before school on Monday, and

(ii) In week 2 from after school on Monday to before school on Tuesday.

(iii) Week one is to commence on Friday 28 October 2011.

(iv) These orders are to be suspended during the school holidays, and the mother’s time with X is to commence on the Friday of the first week in each new school term.

(b) In school holidays:

(i) For the first half of each of the school holidays at the conclusion of term 1, term 2 and term 3.

(ii) For half of the Christmas school holidays, being for the second half of the Christmas school holidays commencing in odd numbered years and for the first half of the Christmas school holidays commencing in even numbered years.

Special Days, unless otherwise agreed:

(a) X is to spend time with his mother from 9.00 am to 5.00 pm on Mother’s day if he is not otherwise in his mother’s care on that day; and,

(b) X is to spend time with his father from 9.00 am to 5.00 pm on Father’s day if he is not otherwise in his father’s care on that day.

(c) In the Christmas holidays commencing in the year 2011 X is to spend time with his mother from 3.00 pm on Christmas Day to 5.00 pm on 30 December 2011.

(d) Commencing in 2012, X is to spend time from Christmas Eve at 5.00 pm to Christmas Day at 12.00 noon with the parent with whom he would not otherwise be spending time in accordance with Order 3(b) above.

(e) The parent with whom X is not living or spending time on his birthday is to spend at least two and a half hours with him on that day if it is a school day, and five hours with him if it is a non school day, failing agreement this time is to be from after school at 5.30 pm on a school day, and from 10.00 am to 3.00 pm on a non school day.

(f) In any block period of time X spends with his mother during the school holiday periods, the father is to have regular telephone contact with X on three days each week, at times to be agreed upon by the parties in writing and failing agreement, at 6.00 pm on Monday, Thursday and Saturday, and for that purpose the father shall telephone the mother on a nominated land-line or her mobile telephone number and the mother shall make the telephone available to X to enable him to speak with his father.

(g) In any block period of time X spends with his father during the school holiday periods, the mother is to have regular telephone contact with X on three days each week, at time to be agreed upon by the parties in writing and failing agreement, at 6.00 pm on Monday, Thursday and Saturday, and for that purpose the mother shall telephone the father on a nominated land-line or her mobile telephone number and the father shall make the telephone available to X to enable him to speak with his mother.

(h) Otherwise X is to have reasonable telephone communication with the parent with whom he is not living or spending time.

Changeover, when not from school, is to be in a public place agreed between the parents and failing agreement in the (omitted) area at (omitted) shopping centre.

Each of the mother and father shall:

(a) Advise the other of any medical treatment being administered to X and of any medical appointments at which X is to attend prior to his attendance at such appointments; and,

(b) Provide all authorities and directions necessary for all health professionals consulted by X to provide to each of the mother and father all information and material held by them in relation to X.

Neither of the parents is to take X to consult with any medical specialist without advising the other parent prior to the making of any appointment with any such specialist.

Each of the parents is restrained from taking X overseas except with the written consent of the other parent or Order of the Court.

Each of the parents is restrained from using derogatory words about the other parent in the presence or hearing of X.

10.

The mother is restrained from approaching or entering upon the father’s residence.

11.

The father is to use his best endeavours to ensure that Ms E does not accompany him on any occasion when he attends the mother’s house.

12.

The mother is restrained from consuming alcohol while X is spending time with her.

13.

Each of the parents is to keep the other informed at all times of their current residential address, mobile and landline telephone numbers and email addresses.

14.

Each of the parents is restrained from changing X’s enrolment at (omitted) Public School, and enrolling him in another school, without the written agreement of the other parent.

15.

Within 28 days of the date of these Orders, the father is to pay one half of the costs of the Independent Children’s Lawyer which amounts to the sum of $6,243.00.

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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