Marcic and Tait - [2010] FMCAfam 1447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARCIC & TAIT

[2010] FMCAfam 1447

FAMILY LAW – Parenting orders – urgent application – suspension of final parenting orders – s.11F report – best interests of the children – interim orders.

Family Law Act 1975, s.60CC

Zabini & Zabini (2010) FamCAFC 10
Goode & Goode [2006] FamCA 1346
Hall & Hall [1979] FLC 90-713
Marvel & Marvel (No.2) [2010] FamCAFC 101
Joris & Joris (2008) FMCAfam 832
Trinder L, ‘Shared Residence: A Review of Recent Research Evidence’ [2010] FamLaw 1192

Applicant:

MS MARCIC

Respondent:

MR TAIT

File Number:

MLC 316 of 2008

Judgment of:

O'Sullivan FM

Hearing dates:

8 & 9 December 2010

Date of Last Submission:

9 December 2010

Delivered at:

Melbourne

Delivered on:

20 December 2010

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Pearsons Barristers & Solicitors

Counsel for the Respondent:

Mr O'Shannessey

Solicitors for the Respondent:

Kelly & Associates Family Lawyers

Independent Children’s Lawyer:

Mr Mulvany

ORDERS

That paragraphs 3, 4 and 5 of the Orders made the 19^th February 2009, be suspended.
That until further Order:
(2.1)Save for time provided hereafter in the long summer vacation 2010/2011 and for Christmas 2010, the children X born the (omitted) 2000, and Y born (omitted) 2003 (“The Children”).live with their father in each alternate week from cessation of school, or if not a school day 5.00pm, Thursday, until commencement of school the following Tuesday or if not a school day 10.00am on such Tuesday.
(2.2)The children be with their mother from 10.00am 25^th December 2010, until 10.00am 26^th December 2010, and the father from 24^th December 2010 at 10.00am until 25^th December 2010 at 10.00am.
(2.3)The children live with their father for two separate weeks in January 2011, school vacation, such weeks to be selected by the father and notified to the mother’s lawyer and to the Independent Children’s Lawyer by 17^th December 2010, and it is directed that in one of such weeks the father ensure that for five consecutive days (four nights) as far as practicable he and the children spend time in the absence of other persons co-residing with them.
(2.4)The children live with the mother at all other times.
That the Independent Children’s Lawyer be at liberty to provide a copy of:
(3.1)The Orders of 8 and 9 December 2010; and
(3.2)The transcript of evidence of Mr E of 8^th December 2010; and
(3.3)Any Reasons of the Court this day to any educational and/or medical and/or allied health professional assisting either or bother of the children and to discuss these proceedings and the children’s interests with any such person.
Save for any immediate emergency each parent be and is hereby restrained from arranging or taking either child to a medical and/or allied health professional without the prior written consent of the other and prior written notification to the Independent Children’s Lawyer.
Each parent be and is hereby retrained from discussing or permitting discussion with either or both…

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 Marcic and Tait

Details

AGLC: Marcic and Tait [2010] FMCAfam 1447
Case: [2010] FMCAfam 1447
Decision Date: 20 December 2010

CaseChat Overview and Summary

The case involves the parents of two children, X and Y, who were born in 2000 and 2003 respectively. The parents were engaged in a dispute regarding the care and custody arrangements for the children, which was heard by the Federal Magistrates Court of Australia. The father sought to modify the existing custody orders, while the mother opposed these changes. The court was tasked with determining the appropriate living arrangements for the children, considering their welfare and the parents' respective roles.

The primary legal issue the court had to resolve was the best interest of the children in terms of their living arrangements. The court had to consider the existing custody orders, the parents' ability to provide a stable and nurturing environment, and the children's expressed wishes, as well as any relevant evidence provided by the Independent Children's Lawyer. Additionally, the court needed to decide whether the children should spend time with each parent during specific periods, including the Christmas and New Year's holiday, and how to manage the transition between parents during the school week.

The court determined that the children's welfare would be best served by maintaining the existing custody arrangement, with some modifications. The court suspended certain paragraphs of the previous orders and set out a detailed schedule for the children's time with each parent, including specific arrangements for Christmas and the summer vacation. The court also imposed restrictions on the parents regarding medical and allied health consultations for the children and prohibited them from discussing the proceedings with the children. The matter was adjourned for an interim hearing to review the arrangements and ensure compliance with the court's orders.

The court's final orders included provisions for the children's living arrangements, restrictions on medical consultations, and a prohibition on discussing the proceedings with the children. The court also provided for the Independent Children's Lawyer to share relevant information with professionals involved in the children's care and to discuss the proceedings with them. The matter was adjourned for an interim hearing to review the arrangements and ensure compliance with the court's orders.

Orders

Orders of the court

That paragraphs 3, 4 and 5 of the Orders made the 19th February 2009, be suspended.

That until further Order:

(2.1) Save for time provided hereafter in the long summer vacation 2010/2011 and for Christmas 2010, the children X born the (omitted) 2000, and Y born (omitted) 2003 (“The Children”).live with their father in each alternate week from cessation of school, or if not a school day 5.00pm, Thursday, until commencement of school the following Tuesday or if not a school day 10.00am on such Tuesday.

(2.2) The children be with their mother from 10.00am 25th December 2010, until 10.00am 26th December 2010, and the father from 24th December 2010 at 10.00am until 25th December 2010 at 10.00am.

(2.3) The children live with their father for two separate weeks in January 2011, school vacation, such weeks to be selected by the father and notified to the mother’s lawyer and to the Independent Children’s Lawyer by 17th December 2010, and it is directed that in one of such weeks the father ensure that for five consecutive days (four nights) as far as practicable he and the children spend time in the absence of other persons co-residing with them.

(2.4) The children live with the mother at all other times.

That the Independent Children’s Lawyer be at liberty to provide a copy of:

(3.1) The Orders of 8 and 9 December 2010; and

(3.2) The transcript of evidence of Mr E of 8th December 2010; and

(3.3) Any Reasons of the Court this day to any educational and/or medical and/or allied health professional assisting either or bother of the children and to discuss these proceedings and the children’s interests with any such person.

Save for any immediate emergency each parent be and is hereby restrained from arranging or taking either child to a medical and/or allied health professional without the prior written consent of the other and prior written notification to the Independent Children’s Lawyer.

Each parent be and is hereby retrained from discussing or permitting discussion with either or both children any aspect of these proceedings and in particular comments made or allegedly made by either child to Mr E.

The matter be adjourned for interim hearing on 22 February 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.

Liberty to apply.

That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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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