LANCASTER & SAGE - [2012] FMCAfam 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANCASTER & SAGE

[2012] FMCAfam 223

FAMILY LAW – Whether should be order for equal shared parental responsibility when lack of communication between parties – whether should be order for nearly equal time when lack of communication and cooperation between parties.

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61D, 61DA, 65DA, 65DAA

Starr & Duggan [2009] FMAC 115
Mallahan & Mallahan [2010] FamCA 631
AIF v AMS [1999] HCA 26
U v U [2002] HCA 36
Chappell & Chappell [2008] FamCAFC 143

Applicant:

MR LANCASTER

Respondent:

MS SAGE

File Number:

DGC 4165 of 2010

Judgment of:

Phipps FM

Hearing dates:

1 & 2 February 2012

Date of Last Submission:

2 February 2012

Delivered at:

Dandenong

Delivered on:

13 March 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Weerappah

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

Ms Gordon

Solicitors for the Respondent:

Vivien Mavropoulos & Associates

ORDERS

That the father and the mother have equal shared parental responsibility for the child X born (omitted) 2007.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Each alternate weekend from after school Friday until before school Monday, commencing 30 March 2012;
(b)Each alternate week from after school Monday to before school Tuesday, commencing 9 April 2012;
(c)Half school term holidays as agreed and if not agreed the first half;
(d)Half summer school holidays as agreed and if not agreed the first half in 2012/2013 and each alternate year thereafter and the second half in 2013/2014 and each alternate year thereafter;
(e)On the child’s and the father’s birthday, unless otherwise agreed, from after school until 5.30pm on school days and from 10.00am to 2.00pm on non school days;
(f)On Father's Day from 10.00am to 6.00pm;
(g)Otherwise as agreed.
Notwithstanding any other order the child will spend time at Christmas as follows:
(a)From 4.00pm 24 December 2012 until 12.00noon 25 December 2012 and each alternate year thereafter and from 12.00noon 25 December 2013 until 4.00pm 26 December 2013 each alternate year thereafter with the father;
(b)From 12.00noon 25 December 2012 until 4.00pm 26 December 2012 and each alternate year thereafter and from 4.00pm 24 December 2013 until 12.00noon 25 December 2013 and each alternate year thereafter with the mother.
In the event that the child is spending time with the father time is suspended:
(a)From 10.00am on Mother's Day;
(b)On the mother’s and the child's birthday, unless otherwise agreed, from after school until 5.30pmon school days and from 10.00am to 2.00pm on non school days.
The child's time with the father pursuant to paragraph 3 (a) and (b) is suspended during all school term and summer holidays.
Changeover for the purpose of the child spending time with the father, when not at the child's school, will take place outside the Mordialloc Police Station.
Each party will keep the other informed of any serious injury or illness to the child while the child is in that party’s…

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 LANCASTER & SAGE

Details

AGLC: LANCASTER & SAGE [2012] FMCAfam 223
Case: [2012] FMCAfam 223
Decision Date: 13 March 2012

CaseChat Overview and Summary

Lancaster & Sage is a case before the Family Court of Australia involving a dispute between the parents of a child, X, born in 2007, regarding the arrangements for the child’s care and contact. The mother and father were seeking a resolution that would provide for the child’s best interests in terms of residence and contact arrangements. The legal issues before the court included determining whether the parents should have equal shared parental responsibility, deciding where the child should live, and establishing a detailed schedule for the child’s time with the father.

The court considered evidence from both parents and expert assessments to determine the child’s best interests. It concluded that the parents should have equal shared parental responsibility and that the child should live with the mother. The court outlined a comprehensive schedule for the father’s contact with the child, including specific times during weekends, school holidays, and special occasions. The court also included provisions for the suspension of contact during certain times and required changeovers to take place at a designated location. Additionally, the court mandated that both parents keep each other informed of any significant health issues affecting the child and enjoined them from speaking negatively about each other in the child’s presence.

The final orders of the court granted equal shared parental responsibility to both parents, stipulated that the child would live with the mother, and set forth a detailed schedule for the father’s contact with the child. The orders also included provisions for medical updates, communication during school events, and restrictions on denigrating the other parent. All other pending applications were dismissed.

Orders

Orders of the court

That the father and the mother have equal shared parental responsibility for the child X born (omitted) 2007.

That the child live with the mother.

That the child spend time with the father as follows:

(a) Each alternate weekend from after school Friday until before school Monday, commencing 30 March 2012;

(b) Each alternate week from after school Monday to before school Tuesday, commencing 9 April 2012;

(d) Half summer school holidays as agreed and if not agreed the first half in 2012/2013 and each alternate year thereafter and the second half in 2013/2014 and each alternate year thereafter;

(e) On the child’s and the father’s birthday, unless otherwise agreed, from after school until 5.30pm on school days and from 10.00am to 2.00pm on non school days;

(f) On Father's Day from 10.00am to 6.00pm;

(g) Otherwise as agreed.

Notwithstanding any other order the child will spend time at Christmas as follows:

(a) From 4.00pm 24 December 2012 until 12.00noon 25 December 2012 and each alternate year thereafter and from 12.00noon 25 December 2013 until 4.00pm 26 December 2013 each alternate year thereafter with the father;

(b) From 12.00noon 25 December 2012 until 4.00pm 26 December 2012 and each alternate year thereafter and from 4.00pm 24 December 2013 until 12.00noon 25 December 2013 and each alternate year thereafter with the mother.

In the event that the child is spending time with the father time is suspended:

(a) From 10.00am on Mother's Day;

(b) On the mother’s and the child's birthday, unless otherwise agreed, from after school until 5.30pmon school days and from 10.00am to 2.00pm on non school days.

The child's time with the father pursuant to paragraph 3 (a) and (b) is suspended during all school term and summer holidays.

Changeover for the purpose of the child spending time with the father, when not at the child's school, will take place outside the Mordialloc Police Station.

Each party will keep the other informed of any serious injury or illness to the child while the child is in that party’s care and the name of any treating medical practitioner or hospital.

Each party, at that party’s expense, is entitled to receive school circulars and reports and the like and to attend information nights, parent-teacher interviews, school plays and sporting events and similar occasions at the child's school.

10.

Each party is restrained by injunction from denigrating the other party to or in the presence of the child.

11.

Each party is entitled to communicate with and obtain reports from any of the child's treating medical practitioners.

12.

Otherwise all extant applications and dismissed.

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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