Maddock and Barkin - [2016] FCCA 41

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDOCK & BARKIN

[2016] FCCA 41

Catchwords:
FAMILY LAW – Parenting – with whom the child should live – close relationships with both parents and extended family - determination as to the appropriateness of the presumption of equal shared parental responsibility – considerations arising from such a determination including whether equal time or significant and substantial time were reasonably practicable and in the best interests of the child – not practicable in the current geographic circumstances of the parties – consideration of those matters arising pursuant to sections 60B and 60CC – determination in a finely-balanced case of the significance of each party’s capacity to foster a relationship with the other party – consequential orders for the child to live with one parent and spend time with the other parent with alternatives depending upon the proximity of the parents’ residences in the future.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382
Heath & Hemming (No 2) [2011] FamCA 749
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439

MRR v GR (2010) 240 CLR 461

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405
M v S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438

Applicant:

MR MADDOCK

Respondent:

MS BARKIN

File Number:

CSC 806 of 2011

Judgment of:

Judge Coker

Hearing date:

7 & 8 September 2015

Date of Last Submission:

8 September 2015

Delivered at:

Townsville

Delivered on:

29 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Jacobs

Solicitors for the Applicant:

Roberts Family Law

Counsel for the Respondent:

Mr Middleton

Solicitors for the Respondent:

Bassano Law

ORDERS

That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2009, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day…

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 Maddock and Barkin

Details

AGLC: Maddock and Barkin [2016] FCCA 41
Case: [2016] FCCA 41
Decision Date: 29 January 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Coker regarding the parental responsibility and living arrangements for a child, X. The parties, identified as the Father and the Mother, sought to resolve disputes concerning the child's upbringing and time spent with each parent.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues, including education, religious and cultural upbringing, health, name, and significant changes to living arrangements. Additionally, the court needed to establish the specific arrangements for the child's day-to-day care, welfare, and development, as well as the practicalities of the child spending time with each parent, including provisions for school holidays and communication.

Judge Coker ordered that the Father and Mother have equal shared parental responsibility for major long-term issues concerning the child, requiring them to consult and make genuine efforts to reach joint decisions. The court also stipulated that each parent would be responsible for the child's day-to-day care while the child was with them. Specific provisions were made for the child to live with the Father and spend time with the Mother, with detailed arrangements contingent on whether the Mother lived within a specified area. These arrangements included detailed schedules for weekends, school holidays, and telephone communication. The court also made orders regarding the child's schooling and the process for changeovers between parents.

Orders

Orders of the court

That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2009, including but not limited to:

(a) a child’s education (both current and future);

(b) a child’s religious and cultural upbringing;

(d) a child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

That notwithstanding Order 1 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.

IN THE EVENT THAT THE MOTHER DOES NOT LIVE WITHIN THE (OMITTED) AREA

That the child live with the Father and spend time with the Mother at all reasonable times as may be agreed and failing agreement as follows:

(a) During the first two weekends of each three week cycle from 3.00pm Friday until 5.00pm Sunday or Monday should the Monday be a public holiday or pupil free day;

(b) For one half of each of the gazetted school holidays as may be agreed between the parties and failing agreement as follows:

(i) For the first half of all school holidays in even numbered years;

(ii) For the second half of all school holidays in odd numbered years.

IN THE EVENT THAT THE MOTHER LIVES WITHIN THE (OMITTED) AREA

That the child live with the Father and spend time with the Mother at all reasonable times as may be agreed and in particular as follows:

(a) On a week-about basis with changeover occurring after school on Fridays;

(b) For one half of each of the gazetted school holidays as may be agreed between the parties and failing agreement as follows:

(i) For the first half of all school holidays in even numbered years;

(ii) For the second half of all school holidays in odd numbered years.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;

(d) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(e) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(f) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

That the child have telephone communication with the parent with whom she is not living or spending time at all reasonable times and in particular, unless otherwise agreed in writing between the parents, at 6.00pm on Tuesdays and Thursdays, with the parent not having the child in their care to be responsible for making the calls and the parent having the child in their care to ensure she is available to take the calls in a quiet and private environment.

That notwithstanding the provisions of Orders 1 through 3 herein, should the parties be unable to agree as to a school to be attended by the child, then the child is to attend the (omitted) State School for her primary education and a high school selected by the Father for her secondary education.

That should the parties not otherwise be in agreement, changeover is to occur at the child’s school and, if not a school day, then during the school term the Mother is to return the child to the Father’s residence and during gazetted school holidays, the parent who is to have the child come into their care shall be responsible for the collection of the child from the residence of the other parent.

10.

Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.

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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