Maguire and Sheldon

Case [2011] FMCAfam 919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAGUIRE & SHELDON [2011] FMCAfam 919
FAMILY LAW – Parenting orders – substantial issue is whether the children are or would be exposed to an unacceptable risk of harm if exposed to their father – allegations of family violence and sexual abuse – credibility of evidence.
Family Law Act 1975, ss.4, 68B, 69ZW, 60K, 60CG, 60CA, 69ZN, 69ZQ, 69ZT, 69ZX, 61DA, 60CC, 68R, 117, 117AB, Division 12A
Federal Magistrates Court Act1999, ss.66, 70
Evidence Act 1995, s.140, Division 3, 4, 5
Magna Carta, clause 39
Johnson & Paige [2007] FamCA 1235
Re David (1997) FLC 92 – 776
Jones & Dunkell (1959) 101 CLR 298
M & M (1987) FLC 91-830; (1987) 11 Fam LR
Briginshaw & Briginshaw (1938) 60 CLR 336
Casely & Casely (costs) [2010] FamCAFC 189
A. v. A. (1976) V.R. 298
B & B [Access] (1986) FLC 91-758
Leveque v. Leveque (1983) 54 B.C.L.R. 164
Re G. (a minor) (1987) 1 W.L.R. 1461
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395
N & S (1996) FLC 92-655
S & S [1993] NZFLR 657
Potter v Potter [2007] FamCA 350
In M v Y [1994] NZFLR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Re JJT; ex parte Victoria Legal Aid [1998] HCA 44
Latoudis v Casey [1990] HCA 59
Ruddick & Ors v Vadarlis & Ors (2001) 188A LR 143
B & J [2006] FamCA 256
Applicant: MR MAGUIRE
Respondent: MS SHELDON
File Number: PAC 2607 of 2010
Judgment of: Harman FM
Hearing dates: 28 – 29 April & 5 August 2011
Date of Last Submission: 5 August 2011
Delivered at: Parramatta
Delivered on: 7 September 2011

REPRESENTATION

Counsel for the Applicant: Ms Winfield
Solicitors for the Applicant: Allied Lawyers
Counsel for the Respondent: Ms Dulhunty
Solicitors for the Respondent: Savage & Love Solicitors

ORDERS

  1. That all and any prior parenting orders with respect to the children of the relationship between Mr Maguire (the applicant father) and


    Ms Sheldon (the respondent mother) and being:

    [X] born [in] 2004; and,

    [Y] born [in] 2007

    shall be and are hereby discharged.

  2. That Ms Sheldon, the children’s mother, shall have sole parental responsibility for [X] and [Y].

  3. That notwithstanding order 2 hereof that:

    a)Ms Sheldon shall be responsible for deciding the school/s to be attended by [X] and/or [Y] but shall ensure that Mr Maguire is provided with all relevant details of such enrolments including the name, address and contact details of the school/s and [X] and/or [Y]’s class room teachers;

    b)Each of the parents shall do all things, sign all documents and give all consents and authorities necessary to include each parent’s details to be recorded by and with any school attended by [X] and/or [Y] as a parent and emergency contact…

Continue reading Maguire and Sheldon

Sign in free to access the full text

Details
AGLC
Maguire and Sheldon [2011] FMCAfam 919
Case
[2011] FMCAfam 919
Decision Date

CaseChat Overview and Summary

In the case of Maguire and Sheldon, the primary dispute centered on the parenting arrangements for the two children of the relationship, [X] born in 2004 and [Y] born in 2007. The court was tasked with determining the allocation of parental responsibility and the specific time arrangements between the parents, Mr Maguire and Ms Sheldon. The case involved complex issues surrounding the allegations of family violence and the best interests of the children, which necessitated a detailed examination of various statutory provisions under the Family Law Act 1975.

The legal issues before the court included the applicability of the presumption of equal shared parental responsibility, the determination of what arrangements would be in the children's best interests, and the consideration of specific contact arrangements that would facilitate the children's relationship with both parents. The court had to assess the capacity of the parents to communicate and resolve difficulties, their current and future ability to implement time-sharing arrangements, and the potential impact of these arrangements on the children.

In reaching its decision, the court first considered the statutory objects and principles set out in s.60B and s.60CA of the Family Law Act 1975. The court noted the absence of effective communication between the parents and the competing proposals for parenting time, which led to the conclusion that the presumption of equal shared parental responsibility did not apply. The court then applied the dual test set out in s.65DAA(5) and s.60CC, which required a determination of what was reasonably practicable and in the children’s best interests. The court found that the specific time arrangements outlined in the orders were necessary to ensure the children’s well-being and their continued relationship with both parents.

The court ultimately ordered that Ms Sheldon would have sole parental responsibility for the children, while Mr Maguire would have specific visitation rights. The orders included detailed provisions for school and recreational activities, communication between the children and their parents, and specific restrictions to protect the children from exposure to harmful discussions and environments. The court also included provisions to ensure that both parents could maintain an active role in the children's lives through educational and recreational participation, communication, and shared decision-making.

Orders

Orders of the court

1.

That all and any prior parenting orders with respect to the children of the relationship between Mr Maguire (the applicant father) and

Ms Sheldon (the respondent mother) and being:

[X] born [in] 2004; and,

[Y] born [in] 2007

shall be and are hereby discharged.

2.

That Ms Sheldon, the children’s mother, shall have sole parental responsibility for [X] and [Y].

3.

That notwithstanding order 2 hereof that:

a) Ms Sheldon shall be responsible for deciding the school/s to be attended by [X] and/or [Y] but shall ensure that Mr Maguire is provided with all relevant details of such enrolments including the name, address and contact details of the school/s and [X] and/or [Y]’s class room teachers;

b) Each of the parents shall do all things, sign all documents and give all consents and authorities necessary to include each parent’s details to be recorded by and with any school attended by [X] and/or [Y] as a parent and emergency contact person;

c) Each of the parents shall do all things, sign all documents and give all consents and authorities necessary to enable each parent to obtain such information, reports, newsletters, copies of school photos and order forms or other materials as they may desire from any school attended by [X] and/or [Y];

d) Each parent shall be entitled to attend [X] and/or [Y]’s school at any time and for any purpose authorised or permitted by their school/s including assemblies, sports and special event days, parent teacher interviews, class functions and as parent/helpers or other activities at or associated with their school/s and to which parents, grandparents or carers are invited to attend from time to time and provided that should Mr Maguire propose attending at the children’s school at any time he shall advise Ms Sheldon of that intention prior to doing so;

e) Each parent shall do all things, sign all documents and give all consents and authorities necessary to include each parent’s details to be recorded by and with any sporting or other recreational group with [X] and/or [Y] are involved from time to time and with respect to same:

i) Each parent shall be entitled to obtain directly from such club or group copies of training, playing, performing or participation rosters as are applicable to the children;

ii) Each parent shall be entitled to attend such events (irrespective of whose care the children are in at that time);

iii) The parent in whose care the children are at the time of such events or activities shall ensure that the children attend;

f) Each parent shall advise the other forthwith and contemporaneous with the event of any significant illness or hospitalisation relating to or experienced by [X] and/or [Y] and, further each parent shall do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit both parents to be fully advised and consulted with respect to such illness or condition and with respect to any treatment or hospitalisation and to visit [X] and/or [Y] if hospitalised;

g) Each parent is to advise the other forthwith of any referral for [X] and/or [Y] to attend for specialist investigation or treatment or counselling and shall, further advise the other parent of the time, date and place of any appointment made and each parent shall give all consents and authorities necessary to allow, enable and permit both parents to be fully advised and consulted with respect to such appointment and to attend the appointment should they so desire;

h) Each parent shall keep the other advised at all times of an email address via which [X] and/or [Y] can be contacted and an emergency telephone contact number.

4.

That [X] and [Y] shall live with their mother Ms Sheldon.

5.

That [X] and [Y]’s father Mr Maguire shall spend time with [X] and [Y]:

a) From 10am until 5pm on each of Sunday 25 September, Sunday 9 October 2011 and Sunday 6 November 2011;

b) From 10am Saturday until 5pm Sunday for each of the weekends of 19 November 2011, 2 December and 16 December 2011;

c) From 10am 26 December 2011 until 5pm 29 December 2011;

d) From 10am 13 January 2012 until 5pm 21 January 2012;

e) Thereafter and commencing Term 1 2012:

i) Each 3rd and 7th weekend of each NSW school term and from the conclusion of school Friday until 6pm Sunday (extending to 6pm Monday in the event of a long weekend or pupil free day);

ii) For the first half of each short NSW school holiday period and from the conclusion of school on the last Friday of term and until 6pm on the middle Saturday of the holiday period;

iii) For 2 periods each of 8 nights duration during the Christmas school holidays in each year and being:

(i) In 2012 and each alternate year thereafter a period from 10am on the first day of the holidays (being the first day after the last scheduled day of school attendance) and ending 6pm on the day following the 8th night) and for a second period commencing 10am 19th January and concluding 6pm 27th January;

(ii) In 2013 and each alternate year thereafter a period from 10am on 27th December and ending 6pm on the 6th January and for a second period commencing 10am 19th January and concluding 6pm 27th January.

6.

That to facilitate [X] and [Y] passing into their father’s care that:

a) Until Term 1 2012 changeovers shall, absent agreement between the parents, occur at the [P] Police Station and within the foyer thereof (and provided that either parent shall be entitled to have their parent/s attend changeovers on their behalf); and,

b) From Term 1 2012 Mr Maguire shall collect [X] and [Y] from their school at the commencement of each period if a school day and, if not, changeovers shall occur as above.

7.

That to facilitate [X] and [Y] passing into their mother’s care that changeovers shall, absent agreement between the parents, occur at the [P] Police Station and within the foyer thereof (and provided that either parent shall be entitled to have their parent/s attend changeovers on their behalf).

8.

Each parent shall be entitled to communicate and speak with [X] and/or [Y] by email and/or other web based communications (including Skype) at all reasonable times and with reasonable frequency and each parent shall allow and permit [X] and/or [Y] to communicate with or respond to the other parent on the same basis.

9.

Each parent shall be entitled to communicate and speak with [X] and/or [Y] by phone at all reasonable times and with reasonable frequency and provided that between 6:30-7pm each Tuesday, Thursday and Saturday [X] and/or [Y] shall be available to receive a call from and speak with the parent in whose care they are not at that time and each parent shall:

(a) ensure the number they have provided is switched on and not otherwise engaged at those times;

(b) ensure that the phone is switched on, charged and in credit; and,

(c) Shall allow [X] and/or [Y] to speak with privacy and without interference or distraction.

10.

Neither parents shall:

(a) Denigrate the other or speak harshly, critically or in an insulting manner about the other parent to or in the presence or hearing of [X] and/or [Y] and shall not allow, cause, encourage or permit any other person to do so;

(b) Discuss these proceedings or any issue or allegation raised in these proceedings with [X] and/or [Y] nor allow, cause, encourage or permit any other person to do so;

(c) Cause the children to receive counselling regarding the child’s relationship with the other parent or any issue alleged to arise from the child’s relationship with the other parent without the other parent being advised of same and invited to attend and participate in that counselling.

11.

That pursuant to s.68B of the Family Law Act 1975 Mr Maguire shall be and is hereby restrained from questioning [X] and/or [Y] regarding Ms Sheldon’s (their mother’s) household arrangements, address, occupants of their home or their mother’s employment and Mr Maguire shall not, in any event, attend at or go within 100 metres of the mother’s home or work address nor:

(a) Cause, allow, permit or encourage any other person to do so; or,

(b) Provide or make known to any other person any details for same as may become known to him.

12.

As soon as practicable after the making of these orders and at such time and date as shall be advised by the Independent Children’s Lawyer or her delegate Ms Sheldon shall cause both [X] and/or [Y] to attend with a the Independent Children’s Lawyer or her delegate to them to advise [X] and/or [Y] of the orders made today and their effect and to answer any questions they may have regarding the orders or their operation.

13.

All outstanding applications and responses are otherwise dismissed.

14.

All issues are removed from the list of cases awaiting hearing.

15.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I note in particular and adopt the seven point summary provided by Justice Fogarty and highlight that portion of the above being:“...there is however a requirement to ask whether the evidence establishes an unacceptable risk”. It is by reference to the above authorities that I am satisfied that the findings made by me are appropriate in the circumstances. I am required to commence any consideration of cases involving parenting issues by considering the objects and principles set out in s.60B as follows: Section 60CA then reminds the Court that the children’s best interests are the paramount consideration in all that is done. I am required to then consider s.61DA and whether the presumption of equal shared parental responsibility applies. The presumption does not apply when a finding of family violence or abuse is made or, by reference to sub.s(4), the presumption can be rebutted in circumstances where I am satisfied it is not in the children’s best interest that it apply. I would have some difficulty in being satisfied, based on the concessions made by Mr Maguire, that family violence has not occurred. However, I note that a plea of guilty was entered with respect to a charge of malicious damage although no conviction was recorded. The facts and circumstances relating to that charge are, accordingly, before the Court and as such I am satisfied that a finding has been made by the Local Court seized with dealing with that matter. Accordingly I do not propose to apply the presumption and find that it does not apply. Lest I am wrong with respect to the above I note that I would be satisfied, by reference to the absence of communication or ability of these parties at present or for any foreseeable time in the future to communicate and resolve difficulties, that the presumption would be rebutted. The above being the case I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. In any event I note that the parties’ proposals at this point in the proceedings are competing and counter part applications for the children to live with them and to have no time or, at best, limited time with the other parent. In determining what time arrangement should apply generally for these children as between time with each of their parents and each of them I am required to apply the dual test of what is reasonably practicable as set out in s.65DAA(5) and what is in the children’s best interest as set out in s.60CC. Those two sections providing as follows: In determining for the purposes of sub.ss(1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:a)how far apart the parents live from each other; andb)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; andc)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; andd)the impact that an arrangement of that kind would have on the child; ande)such other matters as the court considers relevant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.