Kirk and Kirk and Anor (No 2) - [2018] FamCA 983

FAMILY COURT OF AUSTRALIA

KIRK & KIRK AND ANOR (NO. 2)

[2018] FamCA 983

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where one child has been living with the grandmother and one child has been living with the mother – Whether the children should both live in the primary care of the mother – Whether current arrangements should continue – Where there is a history of conflict between the parties – Where serious allegations have been made historically regarding abuse and family violence – Where the parties are hostile to each other and have no ability to communicate – How much time the children should spend with each of the parties – Independent Children’s Lawyer supports both children living with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3) 69ZT

Andrew & Delaine [2009] FamCAFC 182
Mazorski & Albright [2007] FamCA 520

APPLICANT:

Ms Kirk

1st RESPONDENT:

Ms B Kirk

2nd RESPONDENT:

Mr Dudley

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

687

2016

DATE DELIVERED:

26 November 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

10 - 14 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ross

SOLICITOR FOR THE APPLICANT:	B C O’Leary and Associates
COUNSEL FOR THE 1ST RESPONDENT:	Mr McQuade

SOLICITOR FOR THE 1ST RESPONDENT:

Dixon Gallasch Pty Ltd

COUNSEL FOR THE 2ND RESPONDENT:

Litigant in person

SOLICITOR FOR THE 2ND RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

UPON NOTING that B born … 2008 shall spend no time with the grandmother until 10 December 2018

Orders

That the mother have sole parental responsibility for B born … 2008 (“B”) and C born … 2014 (“C”) (collectively “the children”).
That the children live with the mother.
That as and from 10 December 2018 B spend time with the grandmother as follows:-
(a) During school term:-
(i)On each alternate weekend from the conclusion of school (or 3 pm if a non-school day) on Friday to the commencement of school (or 9 am if a non-school day) on the following Monday;
(ii)In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday to the commencement of school (or 9 am) on Friday.
(b)For one half of the short end of term holidays and for one half of the Christmas long school holidays to be taken on a week about basis.
That C spend time with the father as follows:-
(a)During school term and to coincide with the weekend that B spends with the grandmother:-
(i)On each alternate weekend from 6 pm Saturday to the commencement of school (or childcare/early learning) (or 9 am if a non-school day) on Tuesday;
(b)For one half of the short end of term holidays and to coincide with the time that B spends with the grandmother and for one half of…

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.

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Details

Case: [2018] FamCA 983
Decision Date: 26 November 2018

CaseChat Overview and Summary

In the matter of *Kirk and Kirk and Anor (No 2)*, Berman J of the Federal Circuit Court of Australia was required to determine parenting orders concerning two children, B (born 2008) and C (born 2014). The dispute involved the mother, the father, and the grandmother, with the court ultimately making orders regarding parental responsibility, living arrangements, and time spent with each party and the grandmother.

The central legal issues before the court were to establish who would have sole parental responsibility for the children, where the children would live, and the specific arrangements for the children to spend time with the mother, father, and grandmother. The court also had to consider provisions for special occasions, holidays, and the exchange of information between the parties, as well as address any necessary restraining orders to ensure the children's welfare.

Berman J ordered that the mother have sole parental responsibility for both children and that they live with her. The court then detailed a comprehensive schedule for the children to spend time with the grandmother (specifically B) and the father (specifically C), including alternate weekends, school holidays, and specific times on Christmas Eve and Christmas Day, alternating annually between the parties. Provisions were also made for time spent on Mother's Day and Father's Day, and for other agreed times. Crucially, the court granted injunctions restraining the grandmother and father from seeking medical treatment for the children without the mother's authority, except in emergencies, and ordered that school reports and other information be provided to the grandmother and father at their expense.

Orders

Orders of the court

That the mother have sole parental responsibility for B born … 2008 (“B”) and C born … 2014 (“C”) (collectively “the children”).

That the children live with the mother.

That as and from 10 December 2018 B spend time with the grandmother as follows:-

(a) During school term:-

(i) On each alternate weekend from the conclusion of school (or 3 pm if a non-school day) on Friday to the commencement of school (or 9 am if a non-school day) on the following Monday;

(ii) In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday to the commencement of school (or 9 am) on Friday.

(b) For one half of the short end of term holidays and for one half of the Christmas long school holidays to be taken on a week about basis.

That C spend time with the father as follows:-

(a) During school term and to coincide with the weekend that B spends with the grandmother:-

(i) On each alternate weekend from 6 pm Saturday to the commencement of school (or childcare/early learning) (or 9 am if a non-school day) on Tuesday;

(b) For one half of the short end of term holidays and to coincide with the time that B spends with the grandmother and for one half of the Christmas long school holidays to be taken on a week about basis.

That the children spend time with the parties on special occasions as follows:-

(a) The children spend time with the mother on Mother’s Day between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day;

(b) On Father’s Day C shall spend time with the father between 5 pm on the Saturday preceding Father’s Day until 5pm on Father’s Day.

That the children spend time with the parties at Christmas as follows:-

(a) In 2018 and in each alternate year thereafter the children will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the grandmother as to B and the father as to C between 3 pm on 25 December until 3 pm on 26 December;

(b) In 2019 and in each alternate year thereafter the children will spend time with the grandmother as to B and the father as to C between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December.

The children spend time with the grandmother and the father at such other times as agreed between the parties.

That the mother shall authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photographs of the children (at the expense of the grandmother and the father) to be provided to the grandmother as to B and the father as to C and such other information as they may request.

That the grandmother and the father are restrained and injunctions are granted restraining each of them from taking the children or either of them to attend upon any medical practitioner other than with the mother’s authority or in the circumstances of a medical emergency.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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