Langan and Thurston - [2012] FMCAfam 345

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANGAN & THURSTON

[2012] FMCAfam 345

FAMILY LAW – Children – parenting – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether sole parental responsibility to the mother is in the best interests of the child and reasonably practicable – shared care – substantial and significant time – one child aged 6 years 6 months – high conflict between parents – variation of earlier Orders.

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CE, 61DA, 62G, 65AA, 65DAA

Bright & Bright v Bright & Mackley (1995) FLC 92-570
Esmond & Irving [2011] FMCAfam 642
Freeman & Freeman (1987) FLC 91-857
Langan & Thurston [2010] FMCAfam 781
N & M (2003) FMCAfam 29
Rice & Asplund (1979) FLC 90-725

Applicant:

MS LANGAN

Respondent:

MR THURSTON

File Number:

SYC 4362 of 2008

Judgment of:

Scarlett FM

Hearing dates:

22 & 23 July, 4 November 2010

Date of Last Submission:

4 November 2010

Delivered at:

Sydney

Delivered on:

24 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Eleanor Murphy & Company

Counsel for the Respondent:

Mr Watkins

Solicitors for the Respondent:

Beswick Solicitors

ORDERS

Orders 1 to 10 inclusive made by consent in the Family Court of Australia at Sydney on 29 July 2008 are discharged.
The Applicant Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 2005.
The child [X] is to live with the Mother.
The Father is to spend time with the child [X] as follows:
(a)During the school term from immediately after school on the first Wednesday of each fortnight until the commencement of school on the following Tuesday morning;
(b)For half of the Autumn, Winter and Spring school holidays in each year, being the first half of the school holidays in 2013 and all odd-numbered years and the second half in 2012 and all even numbered years;
(c)From 9:00am on 2 January until 5:00pm on Australia Day in each year;
(d)In even numbered years commencing in 2012 from 2:00pm on Christmas Eve until 12 noon on Christmas Day;
(e)In odd numbered years commencing in 2013 from 12 noon on Christmas Day until 6:00pm on Boxing Day;
(f)On the Father’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father according to these Orders;
(g)On the birthday of the paternal grandmother MS T in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father as provided by these Orders;
(h)On the weekend that includes Father’s Day in each year from immediately after school…

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 Langan and Thurston

Details

AGLC: Langan and Thurston [2012] FMCAfam 345
Case: [2012] FMCAfam 345
Decision Date: 24 April 2012

CaseChat Overview and Summary

Langan and Thurston is a case involving a dispute between parents over the care and custody of their child, [X], born in 2005. The Family Court of Australia at Sydney heard the case, which was ultimately resolved by consent on 29 July 2008. The primary issues addressed by the court involved the allocation of parental responsibility and the formulation of a parenting schedule that would ensure both parents could maintain a significant and meaningful relationship with their child.

The legal issues the court had to decide included the best interests of the child, which necessitated a detailed examination of the respective roles and capabilities of each parent. Additionally, the court had to determine an equitable parenting arrangement that allowed the child to maintain a relationship with both parents while ensuring the child's stability and well-being. The court also had to consider the need to protect the child from exposure to conflict and negative influences from either parent.

The court's reasoning involved an assessment of the evidence provided by both parents, which included their respective parenting styles, the child's needs, and the ability of each parent to provide for those needs. The court decided that the best interests of the child were served by awarding sole parental responsibility to the mother while allowing the father a detailed and structured schedule of time with the child. This arrangement aimed to balance the need for the child to have a primary caregiver with the importance of maintaining a relationship with both parents. The detailed schedule provided by the court aimed to ensure that the child would spend significant and meaningful time with each parent, including specific arrangements for school terms, school holidays, and special occasions. The court also imposed conditions to protect the child from any negative interactions between the parents, including restrictions on communication and conduct.

The court's final orders, as detailed in the decision, included discharging previous orders made by consent, awarding sole parental responsibility to the mother, and setting out a specific and detailed parenting schedule for the father's time with the child. The orders also included provisions for changeovers, communication between the child and the non-resident parent, restrictions on the father's conduct towards the mother, and requirements for the mother to share information about the child's schooling with the father. The court's decisions aimed to provide a stable and nurturing environment for the child while ensuring that both parents could maintain a meaningful relationship with their child.

Orders

Orders of the court

Orders 1 to 10 inclusive made by consent in the Family Court of Australia at Sydney on 29 July 2008 are discharged.

The Applicant Mother is to have sole parental responsibility for the child of the marriage [X] born [in] 2005.

The child [X] is to live with the Mother.

The Father is to spend time with the child [X] as follows:

(a) During the school term from immediately after school on the first Wednesday of each fortnight until the commencement of school on the following Tuesday morning;

(b) For half of the Autumn, Winter and Spring school holidays in each year, being the first half of the school holidays in 2013 and all odd-numbered years and the second half in 2012 and all even numbered years;

(d) In even numbered years commencing in 2012 from 2:00pm on Christmas Eve until 12 noon on Christmas Day;

(e) In odd numbered years commencing in 2013 from 12 noon on Christmas Day until 6:00pm on Boxing Day;

(f) On the Father’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father according to these Orders;

(g) On the birthday of the paternal grandmother MS T in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be spending time with the Father as provided by these Orders;

(h) On the weekend that includes Father’s Day in each year from immediately after school on the Friday until the commencement of school on the Monday if Father’s Day should fall on a day when the child would not otherwise be spending time with the Father as provided by these Orders;

(i) On the child’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 1:00pm if the birthday falls on a weekend or holiday and the child would not otherwise be spending time with the Father as provided by these Orders;

(j) On ANZAC Day in each year from immediately after school on the day before ANZAC Day until 6:00pm if the child would not otherwise be spending time with the Father as provided by these Orders; and

(k) At such other times if any as the parties shall agree.

For the purposes of Order (4)(b) above:

(a) the first half of the school holidays will commence immediately after school on the last day of the school term and will conclude at 5:00pm on the middle Saturday of the school holidays; and

(b) the second half of the school holidays will commence at 9:00am on the middle Sunday of the school holidays and will conclude at the commencement of school on the first day of the school term when the children are required to attend school.

Notwithstanding the provisions of Order (4) above, the Father’s time with the child will be suspended and the child will live with the Mother on the following days and times:

(a) On the Mother’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;

(b) On the birthday of Mr O in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;

(c) On the birthday of the child’s half-sister [Y] in each year from immediately after school if the day falls on a school day until 6:00pm that evening or from 9:00am until 5:00pm if the day falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders;

(d) On the weekend that includes Mother’s Day in each year from immediately after school on the Friday until the commencement of school on the Monday or the commencement of school on the Tuesday if the Monday is a public holiday if Mother’s Day should fall on a day when the child would not otherwise be living with the Mother as provided by these Orders; and

(e) On the child’s birthday in each year from immediately after school if the day falls on a school day until 6:00pm or from 9:00am until 1:00pm if the birthday falls on a weekend or holiday and the child would not otherwise be living with the Mother as provided by these Orders.

All changeovers between the parents that are to commence immediately after school or conclude at the commencement of school will take place at the child’s school and for that purpose the parent with whom the child has been living or spending time will ensure that the child is delivered promptly to school with a sufficient amount of clean clothes, school uniforms, sporting equipment and school books and other items that the child will require.

All changeovers that are not to take place at the child’s school will be carried out by the parent with whom the child [X] is living or spending time or that parent’s agreed nominee transporting the child to the other parent’s home at the time provided by these Orders.

Whilst the child [X] is living with the Mother or spending time with the Father at times provided by these Orders the parent with whom the child is living or spending time will facilitate the child calling the other parent on the telephone on one occasion between the hours of 6:00 and 6:30pm each day.

10.

The Father is restrained by injunction from speaking in an abusive or derogatory or offensive way to the Mother or about the Mother or about the Mother’s family group in the presence or hearing of the child [X].

11.

The Father is restrained by injunction from sending any abusive or derogatory or offensive messages to the Mother by email, facsimile transmission or SMS telephone text message or any other electronic means.

12.

The Mother must authorise the Principal of any school attended by the child [X] to forward to the father on a regular basis copies of all school reports, newsletters, information about school photographs and all other documents usually provided to parents of children attending that school.

13.

Each parent is permitted to attend school functions and activities including school sporting activities in which the child [X] is involved.

14.

Each parent is permitted to attend parent-teacher interviews at the child’s school when they are held and for that purpose each parent is to arrange his or her own appointment with the child’s teacher or teachers at a time that does not coincide with the appointment arranged by the other parent.

15.

Each party must inform the other party as soon as is reasonably possible of any illness or injury suffered by the child [X] requiring treatment by a medical practitioner or at a hospital and provide details of the name and address of the medical practitioner or hospital.

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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