Kennedy and Kennedy

[2007] FamCA 1221

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY [2007] FamCA 1221

FAMILY LAW - APPEAL – Parental responsibility – Presumption of equal shared parental responsibility – With whom a child lives – Two children of the relationship aged three and seven – Mother appealed FM orders of equal shared parental responsibility and week-about arrangement – Presumption rebutted by the father’s family violence including threatening to kill the mother.  Following the FM’s orders, the father assaulted the mother’s new partner in the presence of the children – Equal shared parental responsibility not in the best interests of the children as both parents demonstrated a significant inability to communicate with each other about the children – The proper position is that each parent retain parental responsibility pursuant to s 61C – The FM in error in ordering equal time in the form of a week-about arrangement on the basis that fewer changeovers would protect the children from psychological harm - Need to consider whether it was rather the time away from their primary attachment figure (the mother) that may cause such harm – Further error in considering practicability only in a geographically proximate sense, without considering the working arrangements and availability of each parent – Further, as the presumption of equal shared parental responsibility did not apply, consideration of equal time was not necessary – Appeal allowed – On a re-exercise of discretion, arrangement operating prior to the FM’s orders restored.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
House v The King (1936) 55 CLR 499

APPLICANT: MS KENNEDY

RESPONDENT: MR KENNEDY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:	MLM	9723	of	2005
SA	37	of	2007

DATE DELIVERED: 23 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 23 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Coutler Roache

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D.J. McLeod

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Jackson Sweet

ORDERS

1. The appeal be allowed.

2. Orders (2) and (3)(a) and (b) and order 11 made by O'Dwyer FM on 23 March 2007 be set aside and in lieu thereof, the following orders be made.

   (2) The husband and wife each retain parental responsibility for the children, J, born February 2000, and K, born January 2004.

   (3)      The children live with the husband as follows: 

   (a) whilst either children is not attending school:

   (i)from 6 pm Friday to 7 pm Sunday, commencing 3 August 2007 and each alternate fortnight thereafter;

   (ii)from 6 pm Tuesday until 8.30 am Friday, commencing 7 August 2007 and each alternate fortnight thereafter;

   (b)      when both children are at school:

   (i)the periods referred to in (a) above shall commence at the conclusion of each school day;

   (ii)the children should be returned to school on each alternate Friday morning rather than to the wife's home.

   (c)On days when the changeover is to occur…