Kennedy and Kennedy - [2009] FMCAfam 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENNEDY & KENNEDY

[2009] FMCAfam 1013

FAMILY LAW – Parenting – whether sole or equal shared parental responsibility – allegations of family violence – 2 year old with developmental needs – child’s speech and language skills – cultural and religious issues – when child spending overnight time with his father should be introduced.

Family law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Applicant:

MS KENNEDY

Respondent:

MR KENNEDY

File Number:

SYC 3281 of 2008

Judgment of:

Orchiston FM

Hearing dates:

11, 12 June & 14, 15 September 2009

Date of Last Submission:

15 September 2009

Delivered at:

Sydney

Delivered on:

2 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr D. Dura

Solicitors for the Applicant:

Doolan Wagner & Callaghan

Counsel for the Respondent:

Mr A. Givney

Solicitors for the Respondent:

Constantine G Pavlis & Co

ORDERS

All previous parenting Orders are discharged.
The parents shall have equal shared parental responsibility for the child, [X] (the child) born in 2007.
The parents shall have sole responsibility for making decisions relating to the day to day care, welfare and development of the child during such periods as the child is in their respective care.
The child live with the mother.
That the husband spend time with the child as follows:

During pre-school/school terms
Until the child commences school
5.1From the date of these Orders until the child attains the age of 2 years 6 months ([date omitted] 2009):

5.1.1 Each Tuesday from 6pm to 8pm; and
5.1.2 Each Saturday from 9am to 5pm.

5.2Upon the child attaining the age of 2 years 6 months and until the child attains the age of 3 years ([date omitted] 2010):

5.2.1 Each Tuesday from 6pm to 8pm; and
5.2.2 Each Saturday from 9am to 7pm.

5.3Upon the child attaining the age of 3 years and until the child attains the age of 3 years 6 months ([date omitted] 2010):

5.3.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm;
5.3.2Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and
5.3.3Each alternate weekend from 9am Saturday to 10am Sunday.

5.4Upon the child attaining the age of 3 years 6 months and until the child attains the age of 4 years ([date omitted] 2011):

5.4.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm;
5.4.2Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and
5.4.3Each alternate weekend from 9am Saturday to 6pm Sunday.

5.5Upon the child attaining the age of 4 years and until the child commences school:

5.5.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm; and

5.5.2Each alternate weekend from after pre-school or otherwise from 6pm Friday to 6pm Sunday.

Upon the child commencing school
5.6 Upon the child attending school:
5.6.1Each Tuesday from after school or otherwise from 6pm to 8pm; and
5.6.2Each alternate weekend from after school on Friday, or 3pm in the event of a non-school day, to before school on Monday, or 9am in the…

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 Kennedy and Kennedy

Details

AGLC: Kennedy and Kennedy [2009] FMCAfam 1013
Case: [2009] FMCAfam 1013
Decision Date: 2 October 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Kennedy and Kennedy involved a dispute between the parents regarding the parenting arrangements for their child, [X], born in 2007. The primary concern was the allocation of time the child would spend with each parent and the responsibilities each would bear in making decisions about the child's daily care, welfare, and development. The court was tasked with determining how to best balance the interests of the child while ensuring that both parents could remain actively involved in the child's life.

The legal issues before the court encompassed several aspects of parenting orders, including the division of shared parental responsibility, the specific schedules for the child's time with each parent, and the mechanisms for communication and decision-making between the parents. The court had to consider the welfare and best interests of the child as the paramount concern, taking into account the parents' ability to provide a stable and nurturing environment.

The court concluded that the best arrangement for the child involved discharging all previous parenting orders and establishing new ones that ensured equal shared parental responsibility between the parents. The child would primarily reside with the mother, but the father would have detailed visitation rights that increased as the child aged. The orders specified times for the father to spend with the child during pre-school and school terms, as well as during school holidays, and outlined conditions for changeovers and communication between the parents. The court also mandated that both parents maintain updated contact information and facilitate communication between the child and the other parent. Additionally, the orders included provisions for medical and educational matters, ensuring that both parents were kept informed and involved in the child's health and schooling.

The final orders mandated equal shared parental responsibility, outlined specific visitation schedules for the father, and detailed the responsibilities of both parents in various aspects of the child's life. The court dismissed all outstanding applications and removed the matter from the list of cases awaiting finalisation, thereby concluding the proceedings.

Orders

Orders of the court

All previous parenting Orders are discharged.

The parents shall have equal shared parental responsibility for the child, [X] (the child) born in 2007.

The parents shall have sole responsibility for making decisions relating to the day to day care, welfare and development of the child during such periods as the child is in their respective care.

The child live with the mother.

That the husband spend time with the child as follows:

During pre-school/school terms

Until the child commences school

5.1 From the date of these Orders until the child attains the age of 2 years 6 months ([date omitted] 2009):

5.1.1 Each Tuesday from 6pm to 8pm; and

5.1.2 Each Saturday from 9am to 5pm.

5.2 Upon the child attaining the age of 2 years 6 months and until the child attains the age of 3 years ([date omitted] 2010):

5.2.1 Each Tuesday from 6pm to 8pm; and

5.2.2 Each Saturday from 9am to 7pm.

5.3 Upon the child attaining the age of 3 years and until the child attains the age of 3 years 6 months ([date omitted] 2010):

5.3.1 Each Tuesday from after pre-school or otherwise from 6pm to 8pm;

5.3.2 Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and

5.3.3 Each alternate weekend from 9am Saturday to 10am Sunday.

5.4 Upon the child attaining the age of 3 years 6 months and until the child attains the age of 4 years ([date omitted] 2011):

5.4.1 Each Tuesday from after pre-school or otherwise from 6pm to 8pm;

5.4.2 Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and

5.4.3 Each alternate weekend from 9am Saturday to 6pm Sunday.

5.5 Upon the child attaining the age of 4 years and until the child commences school:

5.5.1 Each Tuesday from after pre-school or otherwise from 6pm to 8pm; and

5.5.2 Each alternate weekend from after pre-school or otherwise from 6pm Friday to 6pm Sunday.

Upon the child commencing school

5.6 Upon the child attending school:

5.6.1 Each Tuesday from after school or otherwise from 6pm to 8pm; and

5.6.2 Each alternate weekend from after school on Friday, or 3pm in the event of a non-school day, to before school on Monday, or 9am in the event of a non-school day.

During school holidays

Until the child commences school

5.7 Upon the child attaining the age of 3 years 6 months and until the child commences school:

5.7.1 For a period of four (4) consecutive nights during the Christmas school holidays to commence at 9am on 3 January and to conclude at 6pm on 7 January; and

5.7.2 From 6pm Easter Thursday to 6pm Easter Saturday in years ending in an odd year and from 6pm Easter Saturday to 6pm Easter Monday in years ending in an even year;

5.7.3 For a period of (2) consecutive nights during of second half of the Term 1 school holidays from 9am on the second Monday to 6pm on the following Wednesday;

5.7.4 For a period of four (4) consecutive nights during the first half of Terms 2 and 3 of the school holidays from 9am on the first Monday to 6pm on the following Friday.

Upon the child commencing school

5.8.1 For the first half of the school holidays at the end of Terms 1, 2 and 3 in even years and the second half in odd years;

5.8.2 In the child’s first year at school, for two (2) non-consecutive periods of nine (9) days during the Christmas school holidays with such periods to commence at 9am on the first day and conclude at 6pm on the last day of each period with the father to notify the mother by e-mail of the days this time is to occur within 21 days prior to the end of Term 4; and in each year thereafter for the first half of the Christmas school holidays at the end of Term 4 in even years and the second half in odd years;

5.8.3 From 2pm on 4 January to 2pm on 7 January in odd years.

Other times

5.9 On the child’s birthday as agreed or failing agreement from 6pm to 8pm if such birthday falls on a week day and from 10am to 2pm if such birthday does not fall on a weekday;

5.10 Each Father’s Day from 9am to 6pm unless otherwise agreed;

5.11 Upon the child commencing school, from 9am Good Friday to 9pm Easter Saturday each year unless otherwise agreed;

5.12 At such other times as the parties may agree in writing.

The time to be spent by the child with the father pursuant to Order 5 herein to be suspended during which times the child shall live with the mother:

6.1 On Mother’s Day each year from 9am to 6pm;

6.2 On the child’s birthday as agreed between the parties and failing agreement from 6pm to 8pm if such birthday falls on a weekday and from 10am to 2pm if such birthday does not fall on a weekday.

6.3 From 5pm Christmas Eve to 6pm Christmas Day in each year.

Until the child commences school, in the event that the father is unable to spend time with the child in accordance with these Orders due to his work commitments:

7.1 The father shall provide the mother with written notice to her nominated e-mail address of his inability to spend time with the child not later than 48 hours prior to the commencement of the period;

7.2 [X] shall spend such time with the paternal grandparents, but up to a maximum of three times in any calendar year;

7.3 Unless otherwise agreed, a paternal grandparent shall collect the child from the mother at [C] Shopping Centre, or directly from pre-school, at the commencement of each period of time that the paternal grandparents are to spend with the child and shall return the child to the mother at the [C] Shopping Centre at the conclusion of each period of time;

7.4 The mother shall make the child available at such times to either the paternal grandmother or the paternal grandfather at [C] Shopping Centre, where relevant.

Changeovers

For the purposes of the child spending time with the father:

8.1 The father shall collect the child from the mother at [C] Shopping Centre, or directly from pre-school or school, at the commencement of each period of time he is to spend with the child and the father, shall return the child to the mother at the [C] Shopping Centre, or directly to pre-school or school, at the conclusion of each period;

8.2 Unless otherwise agreed, in the event that either the mother or the father is not reasonably available to collect the child from or to return the child to [C] Shopping Centre or from pre-school or school at such times, an adult member of either of the parents’ family shall be permitted to collect and return the child at such times on behalf of the mother or the father;

8.3 The mother or the father shall make the child available at [C] Shopping Centre, where relevant, to that adult member of the other parent’s family at such times.

Unless otherwise agreed, at least seven (7) days prior to the child spending overnight holiday time away from a parent’s usual place of residence, that parent to provide to the other parent by e-mail a telephone number and address for such holiday periods.

10.

Each parent shall keep the other parent informed at all times of the names, telephone number/s and address of all medical practitioners attended upon by the child whilst the child is in their respective care and shall notify the other as soon as practicable, and not later than

24 hours, after the child has attended upon a medical practitioner.

11.

In the event that the child is prescribed medication and/or any other form of treatment by a medical practitioner each parent shall inform the other parent of the medication and/or treatment prescribed as soon as practicable thereafter, but not later than 24 hours after the medication and/or other treatment has been prescribed for the child

12.

Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness, or admission to hospital of the child, when the child is living with or spending time with that parent.

13.

Each parent shall provide all necessary authorities and permissions to enable the other parent to speak with and obtain information and/or reports regarding the child from any medical or health professional attended upon by the child.

14.

The mother shall provide the father with an update copy of the child’s Blue Book within 14 days of any change to the Blue Book.

15.

Each parent shall each ensure that in the event that either of them resides in premises with a swimming pool that the swimming pool is improved with a Council approved fence.

16.

Each parent shall advise the other and keep the other informed by email as to their respective, residential addresses, land line and mobile telephone numbers, e-mail addresses, and any other information necessary for the child to communicate with the other parent and shall notify the other parent of any changes thereto within 48 hours of the date of any change.

17.

Each parent shall facilitate reasonable communication between the child and the other parent at all reasonable times by telephone or other electronic means.

18.

Both parents are at liberty to attend:

18.1 Any pre-school, school, sporting or other extracurricular events and activities to which parents are usually invited; and

18.2 Any medical or health related appointments for the child.

19.

The mother shall do all acts and things and give all authorities necessary for the father to arrange direct with the child’s school for the delivery to him of copies of all school notices, newsletters, reports and photographs.

20.

Pursuant to section 65DA(2) 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 Annexure A and these particulars are included in these orders.

21.

All outstanding applications be dismissed and the matter removed from the list of cases awaiting finalisation.

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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