Macnair and Macnair - [2010] FMCAfam 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACNAIR & MACNAIR

[2010] FMCAfam 510

FAMILY LAW – Children – final arrangements for care of children aged 8 & 5 – parties agree that they should have equal shared parental responsibility for the children – father seeks equal time arrangement – court required to consider equal time arrangement subject to children’s best interest and considerations of reasonable practicality – mother seeks arrangement which would see children spend time with father on alternate weekends and on the intervening Wednesday as well as on special occasions – family report writer recommends the children live in equal time arrangement – parties live approximately thirty kilometres apart on opposite sides of Adelaide – father engaged in full time employment – mother engaged in part-time employment – children attend school close to mother’s home – nature of parties’ communication skills – ability to solve potential parenting problems – effect of equal time arrangement on children – best interests.

Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE
Family Law Amendment (Shared Parental Responsibility) Act 2006

MRR v GR [2010] HCA 4
T & N [2001] FMCAfam 222
Goode & Goode (2006) FLC 92-286
Bright v Bright (1995) FLC 92-570
Astor & Astor [2007] FamCA 355

Applicant:

MS MACNAIR

Respondent:

MR MACNAIR

File Number:

ADC 3862 of 2008

Judgment of:

Brown FM

Hearing dates:

19 & 20 April 2010

Date of Last Submission:

20 April 2010

Delivered at:

Adelaide

Delivered on:

25 May 2010

REPRESENTATION

Counsel for the Applicant:

Mrs West

Solicitors for the Applicant:

Alderman Redman

Counsel for the Respondent:

Mr Heinrich

Solicitors for the Respondent:

S J McKinnon & Associates

ORDERS

The parties have equal shared parental responsibility for the children of the marriage [X] born in 2001 and [Y] born in 2004.
The parents are to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children, which include but are not limited to the following issues:
·The children’s education (both current and future);
·The children’s religious and cultural upbringing;
·The children’s health;
·The children’s names;
·Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The children live with the parents as follows:
(a)During school terms
(i)with the father in alternate weeks from after school on Wednesday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday);
(ii)With the mother at all other times.
(b)During school holidays
(i)On a week-about basis during each short school holiday;
(ii)With the father from the conclusion of school on Maundy Thursday until 6:00pm on Easter Monday in 2011 and each alternate year thereafter;
(iii)with the mother from the conclusion of school on Maundy Thursday until 6:00pm on Easter Monday in 2012 and each alternate year thereafter;
(iv)With the father from 4:00pm on Christmas Day 2010 until 4:00pm on New…

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 Macnair and Macnair

Details

AGLC: Macnair and Macnair [2010] FMCAfam 510
Case: [2010] FMCAfam 510
Decision Date

CaseChat Overview and Summary

In Macnair and Macnair the parents had separated and were in dispute about how they should share responsibility for the care of their two young children. The father sought an equal time arrangement and the mother proposed that the children spend time with their father on alternate weekends and on intervening Wednesdays. The Federal Magistrates Court was required to decide whether an equal time regime was the best outcome for the children. The court found that such an arrangement was not practicable and not in the children's best interests. The court ordered that the children spend time with their father in a significant and substantial time arrangement, which was calculated to be in their best interests and reasonably practicable. The court ordered that the children spend from after school on Wednesday until the beginning of school on Monday in alternate fortnights with their father. The parties were also ordered to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children.

Orders