KATZER & KATZER - [2011] FMCAfam 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KATZER & KATZER

[2011] FMCAfam 85

FAMILY LAW – Interim parenting arrangements – school arrangements – substantial change in circumstances.

Family Law Act 1975, ss.10J, 61DA(2)(5), 65DAA, 60CC, 60I, 60R(10)
Evidence Act 1995

Goode & Goode (2006) FLC 93-286
Marvel [2010] Fam CAFC 101
MRR & GR [2010] HCA 4

Applicant:

MS KATZER

Respondent:

MR KATZER

File Number:

BRC8051 of 2008

Judgment of:

Harman FM

Hearing date:

21 January 2011

Date of Last Submission:

21 January 2011

Delivered at:

Parramatta

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

N/A

ORDERS

All existing parenting orders with respect to the child, [X] born [in] 2005, are discharged.
[X]’s parents shall have equal shared parental responsibility for him.
Pending further order, that [X] shall live with his Father, Mr Katzer:
(a)For two out of three weekends each school term from the conclusion of school Thursday till 6pm Sunday and provided that Mr Katzer is available to collect [X] from school on Thursday and Friday afternoon and return him to school on a Friday morning, and if not then to commence from the conclusion of school Friday.
(b)For a period in each NSW School Holiday Period from either the conclusion of school on Thursday or Friday (to be Thursday if it is a scheduled weekend for [X] to spend with his Father and Friday if not) till 6pm on the middle Sunday of the NSW School Holiday Period.
(c)Such further periods as are agreed between [X]’s parents from time to time.
[X] is to live with his Mother, pending further order, at all times, save when [X] is living with his father.

THE COURT FURTHER ORDERS THAT:

For the purpose of [X] passing between his parents, Mr Katzer is to collect [X] at the commencement of each period from school, or if not a school day Ms Katzer’s home and Ms Katzer is to collect [X] at the conclusion of any period [X] is spending with father from his father’s home.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to:
(a)Cause [X] to be enrolled at and attend [E] School, commencing Term 1 2011;
(b)Ensure both parent’s contact details are known to the school;
(c)Enable each parent to participate in school life to the maximum extent that they may desire, including each parent giving all authorities necessary to enable the school or any individual member of staff to provide to each parent any school reports, photo order forms, newsletters, correspondence or information sought by either parent and to discus [X]’s attendance and progress and general welfare in the school community and to attend at the school and/or with [X] at all times acceptable to the school.
Each parent shall advise the other forthwith and contemporaneously of the event of any significant illness or hospitalisation relating to [X] and shall give such consents…

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 KATZER & KATZER

Details

AGLC: KATZER & KATZER [2011] FMCAfam 85
Case: [2011] FMCAfam 85
Decision Date: 21 January 2011

CaseChat Overview and Summary

The case of Katzer & Katzer involved a dispute between the parents, Mr and Mrs Katzer, regarding the care and parenting arrangements of their child, [X], born in 2005. The case was heard in the Family Court of Australia. The parents had been unable to reach an agreement on the parenting arrangements for their child, leading to the court having to determine the best interests of the child and establish a parenting order.

The court had to decide on the allocation of parental responsibility, the living arrangements for the child, and the communication between the child and each parent. The court also had to determine the logistics of the child transitioning between parents, including the collection and drop-off times, as well as the arrangements for school and medical matters. The court's reasoning was based on the principle that the best interests of the child should be the paramount consideration, and that equal shared parental responsibility was in the child's best interests. The court ordered that the child would live primarily with his mother, with specific visitation periods for the father, and that both parents would have equal shared parental responsibility. The court also directed the parents to attend family dispute resolution and set out detailed arrangements for the child's education, health, and communication with each parent.

The final orders of the court included discharging all existing parenting orders, establishing equal shared parental responsibility, setting out specific visitation periods for the father, and detailing the logistics of the child's education, health, and communication with each parent. The court also directed the parents to attend family dispute resolution and set a date for further mention and directions. The court's decision aimed to provide a stable and supportive environment for the child, while also ensuring that both parents had a meaningful role in the child's life.

Orders

Orders of the court

All existing parenting orders with respect to the child, [X] born [in] 2005, are discharged.

[X]’s parents shall have equal shared parental responsibility for him.

Pending further order, that [X] shall live with his Father, Mr Katzer:

(a) For two out of three weekends each school term from the conclusion of school Thursday till 6pm Sunday and provided that Mr Katzer is available to collect [X] from school on Thursday and Friday afternoon and return him to school on a Friday morning, and if not then to commence from the conclusion of school Friday.

(b) For a period in each NSW School Holiday Period from either the conclusion of school on Thursday or Friday (to be Thursday if it is a scheduled weekend for [X] to spend with his Father and Friday if not) till 6pm on the middle Sunday of the NSW School Holiday Period.

[X] is to live with his Mother, pending further order, at all times, save when [X] is living with his father.

THE COURT FURTHER ORDERS THAT:

For the purpose of [X] passing between his parents, Mr Katzer is to collect [X] at the commencement of each period from school, or if not a school day Ms Katzer’s home and Ms Katzer is to collect [X] at the conclusion of any period [X] is spending with father from his father’s home.

Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to:

(a) Cause [X] to be enrolled at and attend [E] School, commencing Term 1 2011;

(b) Ensure both parent’s contact details are known to the school;

(c) Enable each parent to participate in school life to the maximum extent that they may desire, including each parent giving all authorities necessary to enable the school or any individual member of staff to provide to each parent any school reports, photo order forms, newsletters, correspondence or information sought by either parent and to discus [X]’s attendance and progress and general welfare in the school community and to attend at the school and/or with [X] at all times acceptable to the school.

Each parent shall advise the other forthwith and contemporaneously of the event of any significant illness or hospitalisation relating to [X] and shall give such consents and authorities as are necessary to enable any treating medical practitioner to discuss with both parents [X]’s health and treatment and to enable both parents to visit [X] if hospitalised.

Each parent shall keep the other advised at all times of their residential address, landline telephone number, mobile number and any other emergency contact details.

Each parent shall be entitled to communicate with [X] by telephone at all reasonable times and with reasonable frequency and, should they desire, on a daily basis.

10.

Pursuant to s.13C the parties are directed to forthwith arrange and attend Family Dispute Resolution, at their own cost.

11.

Adjourn proceedings for further mention and directions before me at 9.30am on 21 April 2011.

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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