Marcus and Jeffries and Ors - [2012] FMCAfam 273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARCUS & JEFFRIES & ORS

[2012] FMCAfam 273

FAMILY LAW – Parenting – whether a two year old child should continue to live with her maternal aunt in Bendigo or move to live with her father in [H] – child has lived with the maternal aunt since December 2010 – the Department of Human Services intervened in the proceedings at the final hearing – the mother was unable to participate in the final hearing due to ongoing health issues – the mother and father had a dysfunctional and volatile relationship characterised by violence, the father’s alcohol and drug abuse issues and the mother’s mental health issues – the father has lived a somewhat transient lifestyle – consideration of the impact of removal of the child from the primary care of the aunt – consideration of the risk of harm to child if placed into the primary care of her father – ordered that the child live with the maternal aunt and spend substantial and significant time with the father and regular time with the mother.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 64B, 65DAA, 91B

Potts & Bims [2007] FamCA 394
Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Simpson & Brockman [2010] FamCAFC 37

Applicant:

MR MARCUS

First Respondent:

MS B JEFFRIES

Second Respondent:

MS GARRETT

Third Respondent:

MS M JEFFRIES

Intervener:

THE DEPARTMENT OF HUMAN SERVICES

File Number:

MLC 1342 of 2011

Judgment of:

Bender FM

Hearing dates:

5, 6, 7, 8, 9 and 23 March 2012

Date of Last Submission:

23 March 2012

Delivered at:

Melbourne

Delivered on:

7 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms Boymal

Solicitors for the Applicant:

Peter Baker & Associates

Counsel for the First Respondent:

N/A

Solicitors for the First Respondent:

N/A

Counsel for the Second and Third Respondents:

Mr Puckey

Solicitors for the Second and Third Respondents:

HQ Law

Counsel for the Intervener:

Ms Wynne

Solicitors for the Intervener:

The Department of Human Services

Counsel for the Independent Children’s Lawyer:

Mr Lovering

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

ORDERS

The father and the maternal aunt have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).
[X] live with the maternal aunt.
[X] spend time and communicate with the father as follows:
(a)
commencing 9 June 2012, each alternate weekend from

10.00am Saturday to 4.00pm Monday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;
(b)commencing 3 November 2012, each alternate weekend from 10.00am Saturday to 4.00pm Tuesday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;
(c)commencing 23 February 2013, each alternate weekend from 10.00am Saturday to 4.00pm Wednesday in [H] and from 10.00am to 4.00pm each Monday in Bendigo in the alternate week;
(d)
from 5.00pm on 24 December 2012 to 10.00am

26 December 2012 and each alternate year thereafter;
(e)from 10.00am 26 December 2013 to 4.00pm 28 December 2013 and…

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 Marcus and Jeffries and Ors

Details

AGLC: Marcus and Jeffries and Ors [2012] FMCAfam 273
Case: [2012] FMCAfam 273
Decision Date: 7 June 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Marcus and Jeffries and Ors dealt with the dispute over shared parental responsibility and parenting arrangements for the child, [X], born in 2010. The parties involved were the father, the maternal aunt, and the child’s mother, who had previously been granted sole parental responsibility. The primary concern was determining the most appropriate parenting arrangements for [X], including the allocation of shared parental responsibility, living arrangements, and specific visitation schedules.

The court was tasked with deciding several critical legal issues. These included whether the father should be granted shared parental responsibility and what specific arrangements should be made for [X]'s living situation, visitation times, and communication with both parents. The court also had to consider the father’s history of drug and alcohol use, as well as the maternal aunt’s role in the child’s life. Balancing the child's best interests with the need for stability and continuity in her life was central to the court's deliberations.

In reaching its decision, the court meticulously weighed the evidence and submissions from all parties. The court recognised the father's commitment to participating in [X]'s life and his efforts to address his past issues. The maternal aunt, who had been a significant figure in [X]'s life, was acknowledged for her role in providing stability and support. The court concluded that it was in [X]'s best interest to have equal shared parental responsibility between the father and the maternal aunt. The child would live with the maternal aunt, but the father would have detailed visitation rights, including weekends and school holidays, with specific times and conditions to ensure a smooth transition between parents. The court also imposed conditions on the father's parenting to ensure [X]'s safety and well-being, including regular drug and alcohol screenings and participation in counselling.

Orders

Orders of the court

The father and the maternal aunt have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).

[X] live with the maternal aunt.

[X] spend time and communicate with the father as follows:

(a)

commencing 9 June 2012, each alternate weekend from

10.00am Saturday to 4.00pm Monday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;

(b) commencing 3 November 2012, each alternate weekend from 10.00am Saturday to 4.00pm Tuesday in [H] and from 10.00am to 4.00pm Monday in Bendigo in the alternate week;

(c) commencing 23 February 2013, each alternate weekend from 10.00am Saturday to 4.00pm Wednesday in [H] and from 10.00am to 4.00pm each Monday in Bendigo in the alternate week;

(d)

from 5.00pm on 24 December 2012 to 10.00am

26 December 2012 and each alternate year thereafter;

(e) from 10.00am 26 December 2013 to 4.00pm 28 December 2013 and each alternate year thereafter;

(f) in the event that Father’s Day falls on a weekend [X] is not otherwise spending time with the father, from 10.00am on the Saturday before Father’s Day to 4.00pm on Father’s Day;

(g) upon [X] commencing primary school, for the first two weekends in each three week cycle from 5.00pm Friday to 4.00pm Sunday in [H] commencing the first weekend of each school term;

(h) in 2014, [X]’s time with the father pursuant to order 3(c) herein be extended to 4.00pm Thursday on the weekend she is with her father during each of the school term holidays and the 2014/2015 long summer vacation;

(i) commencing in 2015, for nine (9) nights in each of the school term school holidays as agreed between the father and the maternal aunt and failing agreement from 5.00pm on the last Friday of term to 4.00pm on the middle Sunday of the term holidays;

(j)

commencing the 2015/2016 long summer vacation, on a

week-about basis as agreed between the parties and failing agreement commencing at 5.00pm on the last day of the school term and until 5.00pm the following Friday and each alternate week thereafter;

(k) by telephone and Skype (if available) on such days and at such times as reasonably agreed between the father and the maternal aunt; and

(l) as otherwise agreed between the father and the maternal aunt.

[X]’s time with the father pursuant to order 3 herein shall be suspended as follows:

(a) from 10.00am 26 December 2012 to 4.00pm 28 December 2012 and each alternate year thereafter;

(b) from 5.00pm 24 December 2013 to 10.00am 26 December 2013 and each alternate year thereafter;

(c) until such time as [X] commences school, in the event Mother’s Day falls on a weekend that [X] would otherwise be with the father pursuant to these orders, her time with the father shall not commence until 4.00pm on Mother’s Day;

(d) upon [X] commencing school, in the event Mother’s Day falls on a weekend she would otherwise be with her father pursuant to these orders, her time with her father shall be suspended from 10.00am on Mother’s Day;

(e) upon [X] commencing school, her time with the father pursuant to order 3(g) herein shall be suspended during all school holidays and the three week cycle shall recommence as from the first weekend in each school term.

When [X] is spending time with the father in [H] pursuant to these orders, changeover shall take place in [S] unless otherwise agreed between the parties.

When [X] is spending time with the father in Bendigo pursuant to these orders, changeover shall take place at the home of the maternal aunt unless otherwise agreed between the parties.

Unless the maternal aunt and father otherwise agree, [X]’s time with her father pursuant to order 3(c) herein shall take precedence over any scheduled kindergarten attendance.

[X] shall spend time and communicate with the mother as follows:

(a) until [X] commences school, at such times as agreed between the parties and failing agreement each Thursday between 12.00 noon and 4.00pm;

(b) upon [X] commencing school, each Tuesday and Thursday from after school to 6.00pm;

(c) on Mother’s Day for no less than 2 hours at times agreed between the mother and the maternal aunt and failing agreement between 10.00am and 12.00 noon; and

(d) as otherwise agreed between the parties.

For the purposes of [X]’s time with the mother pursuant to order 8 herein, the maternal aunt shall organise to deliver [X] to and collect [X] from the mother’s residence.

10.

The maternal aunt shall authorise any educational institution which [X] attends to provide copies of reports, newsletters and photograph order forms and any material ordinarily provided to parents to the father and the mother at their respective expense and the father and mother shall be at liberty to attend all [X]’s concerts, special days, sports events, parent/teacher interviews and extra-curricular activities usually attended by parents.

11.

The maternal aunt, father and mother shall:

(a) keep each other notified of their residential address and contact telephone number and notify the other of any change to same within 24 hours of any such change;

(b) notify the other of any serious illness or injury suffered by [X] whilst in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other to obtain information directly from any treating medical practitioners; and

(c) be restrained by themselves, their servants and agents, from criticising or belittling the others in the presence or hearing of [X] or permitting any other persons from so doing.

12.

The maternal aunt is hereby authorised to provide a copy of these orders to the director or principal of any educational institution at which [X] is enrolled and to [X]’s treating medical practitioners.

13.

The father shall:

(a) continue to attend upon his drug and alcohol counsellor as directed by such counsellor;

(b) continue to attend upon his men’s behaviour change counsellor as directed by such counsellor; and

(c) be restrained from ingesting any illicit substances or consuming alcohol to excess 12 hours prior to or during any time [X] is in his care.

14.

Within 48 hours of a written request from the maternal aunt or her solicitor, the father to undergo a supervised urine screen for the testing of illicit substances and provide a copy of the results to the maternal aunt or her solicitor as soon as practicable thereafter, such request to be made no more than once every 2 months and, in the event all results are negative for illicit substances, no such requests shall be made after 1 June 2013.

15.

The maternal aunt and the father shall attend upon such counsellor or organisation as nominated by the Regional Co-ordinator of Child Dispute Service Melbourne Registry of the Federal Magistrates Court for the purposes of counselling to assist them to better communicate in relation to the arrangements for [X] to assist them in their joint decisions in relation to the long term care, welfare and development of [X].

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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