Macleod and Macleod - [2016] FCCA 1446

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACLEOD & MACLEOD

[2016] FCCA 1446

Catchwords:
FAMILY LAW – Parenting – relocation – whether one parent should have sole parental responsibility – children’s views.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT

Cases cited:
Lennon & Lennon [2011] FamCA 571

Applicant:

MS MACLEOD

Respondent:

MR MACLEOD

File Number:

MLC 1179 of 2009

Judgment of:

Judge Williams

Hearing dates:

15 – 18 March 2016 & 11 May 2016

Date of Last Submission:

11 May 2016

Delivered at:

Melbourne

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

Adams Maguire Sier

Counsel for the Respondent:

Ms Wheeler

Solicitors for the Respondent:

Adrian Abrahams Family Lawyers

ORDERS

As from the conclusion of the second school term in 2016, the previous Orders of the Court made on 17 June 2009 and 22 October 2015 be discharged and the following orders shall apply.
That the Mother and the Father have equal shared parental responsibility for the children of the marriage X born (omitted) 2002 and Y born (omitted) 2006.
That the children live with the Mother.
That the children spend time with the Father as follows:
(a)For the first week of the Term 2, 2016 school term holidays from 3.30pm or conclusion of school on the last day of Term 2 2016, until 6.00pm on the middle Saturday of the Term 2 school holidays;
(b)in the event the Father elects to live within 20 kilometres of the Mother's residence, then during school term, on a week about basis, from 3.30pm or the conclusion of school on Friday until 3.30pm or conclusion of school the following Friday commencing Friday, 15 July 2016, and each alternate week thereafter;
(c)in the event the Father remains living more than 20 kilometres from the Mother's home, then then during school term each alternate weekend from 3.30pm or the conclusion of school on Friday until 7.00pm on Sunday, such time to extend to 7.00pm on Monday if that day is a public holiday or pupil-free day;
(d)for one half of the school term holidays at times to be agreed and in default of agreement then:
(i)the first half in even-numbered years, from 6.00pm on the last day of school term until 6.00pm on the middle Friday of the vacation period; and
(ii)the second half in odd-numbered years, from 6pm on the middle Friday of the vacation period until 6pm on the following Friday;
(e)for one half of the long summer holidays at times to be agreed and in default of agreement then:
(i)the first half in even-numbered years, from 6pm on the last day of school term until 6pm on the middle day of the school holiday period;
(ii)the second half in odd-numbered years, from 6pm on the middle day of the school holiday period until 6pm on the Friday preceding the commencement of the next school year;
(f)from 4.00pm 25 December until 4.00pm 26 December in odd-numbered years;
(g)from 5.00pm on Saturday preceding Father’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 Macleod and Macleod

Details

AGLC: Macleod and Macleod [2016] FCCA 1446
Case: [2016] FCCA 1446
Decision Date: 17 June 2016

CaseChat Overview and Summary

This matter concerned an application by the Mother and Father for new parenting orders concerning their two children, X and Y. The court, presided over by Judge Williams, was required to determine the arrangements for the children's living arrangements, time spent with each parent, and other related matters.

The court was tasked with determining the extent of shared parental responsibility, where the children would primarily reside, and the specific schedule for the children's time with the Father. This included detailed provisions for school term time, school holidays, and specific public holidays. The court also needed to address the location of changeovers between parents, the children's education, communication between parents and children, and the exchange of information regarding the children's schooling and medical care.

In its determination, the court ordered that the Mother and Father have equal shared parental responsibility for the children. The children were to live with the Mother, and specific, detailed arrangements were made for the children to spend time with the Father, including provisions for different scenarios based on the Father's residential proximity to the Mother. The court also made orders regarding the children's education at a specific college, liberal telephone communication, and the exchange of important information between the parents concerning the children's welfare. All previous orders were discharged and replaced by these new orders.

Orders

Orders of the court

As from the conclusion of the second school term in 2016, the previous Orders of the Court made on 17 June 2009 and 22 October 2015 be discharged and the following orders shall apply.

That the Mother and the Father have equal shared parental responsibility for the children of the marriage X born (omitted) 2002 and Y born (omitted) 2006.

That the children live with the Mother.

That the children spend time with the Father as follows:

(a) For the first week of the Term 2, 2016 school term holidays from 3.30pm or conclusion of school on the last day of Term 2 2016, until 6.00pm on the middle Saturday of the Term 2 school holidays;

(b) in the event the Father elects to live within 20 kilometres of the Mother's residence, then during school term, on a week about basis, from 3.30pm or the conclusion of school on Friday until 3.30pm or conclusion of school the following Friday commencing Friday, 15 July 2016, and each alternate week thereafter;

(c) in the event the Father remains living more than 20 kilometres from the Mother's home, then then during school term each alternate weekend from 3.30pm or the conclusion of school on Friday until 7.00pm on Sunday, such time to extend to 7.00pm on Monday if that day is a public holiday or pupil-free day;

(d) for one half of the school term holidays at times to be agreed and in default of agreement then:

(i) the first half in even-numbered years, from 6.00pm on the last day of school term until 6.00pm on the middle Friday of the vacation period; and

(ii) the second half in odd-numbered years, from 6pm on the middle Friday of the vacation period until 6pm on the following Friday;

(e) for one half of the long summer holidays at times to be agreed and in default of agreement then:

(i) the first half in even-numbered years, from 6pm on the last day of school term until 6pm on the middle day of the school holiday period;

(ii) the second half in odd-numbered years, from 6pm on the middle day of the school holiday period until 6pm on the Friday preceding the commencement of the next school year;

(f) from 4.00pm 25 December until 4.00pm 26 December in odd-numbered years;

(g) from 5.00pm on Saturday preceding Father’s Day until 5.00pm on Father's Day;

(h) for such further or other periods as may be mutually agreed in writing.

That the children’s time with the Father be suspended:

(a) On the weekend of Mother’s Day, from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day;

(b) From 4.00 pm 25 December until 4pm 26 December in even-numbered years;

That where changeovers do not take place at school, changeover shall occur at a midpoint between the parties homes, and:

(a) in the event the Father continues to live in (omitted), changeovers shall occur at the (omitted);

(b) if the Father moves to live closer to the Mother's home, changeovers shall occur at a location to be agreed that is equidistant between the parties' homes.

That the cycle of the children's fortnightly weekend time with the Father pursuant to Order 4(a/b) herein shall:

(a) commence on the first weekend of term 3 in July 2016; and

(b) resume in each new school term as though the intervening school term and/or summer holiday periods had not intervened.

That the parties forthwith do all acts and things necessary to enrol the children to attend (omitted) College from the commencement of term 3, 2016, unless otherwise agreed in writing.

That the children have liberal telephone communication with each parent at all reasonable times whilst in the care of the other parent.

10.

That each party be and is hereby authorised to:

(a) obtain from the children's schools copies of school reports, newsletters, notices and other correspondence ordinarily provided to parents;

(b) attend school-related events to which parents are normally invited such as parent/teacher interviews, sports days and school concerts;

(c) obtain from any medical practitioner consulted by either of the children, medical information and advice obtained or given regarding the child.

11.

That each party keep the other informed in writing of:

(a) their current residential address, contact telephone numbers and email addresses;

(b) the name and address of any medical practitioner consulted by either child;

12.

That all extant applications be otherwise 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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