Masters and Faber - [2013] FCCA 15

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASTERS & FABER

[2013] FCCA 15

Catchwords:
FAMILY LAW – Parenting – high conflict – low trust – no communication – why is substantial and significant time appropriate when equal time is not?

Legislation:
Family Law Act 1975, ss.60B, 60CC, 60B, 61DA, 65DAA.

Cases cited:
Collu & Rinaldo [2010] FAMCAFC 53
Klein & Klein [2010] FamCAFC 150
MRR v GR [2010] HCA 4

Applicant:

MR MASTERS

Respondent:

MS FABER

File Number:

SYC 7257 of 2011

Judgment of:

Judge Altobelli

Hearing dates:

5 to 7 December 2012, 7 February 2013 and 4 April 2013

Date of Last Submission:

4 April 2013

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Blackah on 5 to 7 December 2012

Counsel for the Respondent:

Ms Sloan on 5 to 7 December 2012

Solicitors for the Respondent:

Marsdens Law Group

Counsel for the Independent Children’s Lawyer:

Ms Murphy on 5 to 7 December 2012 and Ms Court on 7 February and 4 April 2013

Independent Children’s Lawyer:

John Spence & Associates

ORDERS

The parties have equal shared parental responsibility for the child [X] born [in] 2008.
The child [X] live with the mother when not living with the father in accordance with these orders.
That the child [X] live and communicate with the father:
(a)Until the end of the first term school holidays in 2014 each alternate weekend from after school Thursday to the commencement of school on Monday in Week 1 commencing the first Thursday after the date of these orders; and
(b)Each alternate Thursday from after school to the commencement of school Friday, commencing the second Thursday after the date of these orders and
(c)Thereafter from commencement of second term 2014 and during school terms:
(i)each alternate weekend from after school Thursday to the following Monday morning in Week 1; and
(ii)each alternate Wednesday to the following Friday before school in Week 2.
(d)For half of the first, second and third term school holidays as agreed or in the absence of agreement, for the first half in even-numbered years and the second half in odd-numbered years.
(e)For two weeks in the 2013/2014 school holidays and thereafter half the Christmas holidays as agreed, and in the absence of agreement, the first half in even years and the second half in odd years, excluding the Christmas public holiday period.
(f)From after school Easter Thursday until 6pm Easter Saturday in even years and from 6pm Easter Saturday until 6pm Easter Monday in odd years.
(g)By telephone on Tuesday at 6pm when the child is not with the Father.
(h)During the Christmas public holiday period as agreed or failing agreement, from 12 noon Christmas Eve to 2pm Christmas Day in even-numbered years and from 2pm Christmas Day to 6pm Boxing Day in odd-numbered years.
(i)On Father’s Day, if not already spending time with the child, from 9am to 6pm.
(j)On [X]’s birthday as agreed or failing agreement from 3pm to 6pm.
That the father’s time be…

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 Masters and Faber

Details

AGLC: MASTERS & FABER [2013] FCCA 15
Case: [2013] FCCA 15
Decision Date: 19 April 2013

CaseChat Overview and Summary

In the matter of Masters and Faber, heard before Judge Altobelli, the dispute concerned parenting arrangements for the child [X], born in 2008. The court was tasked with determining the specific orders regarding the child's living arrangements, time spent with each parent, and related matters.

The court was required to establish orders for equal shared parental responsibility, the child's primary residence, and a detailed schedule for the child's time with the father. This included provisions for regular weekend and mid-week contact, school holidays, public holidays, and communication. Additionally, the court needed to address practical considerations such as travel, the exchange of the child's passport, and the parties' conduct in the child's presence, including prohibitions on denigration and requirements for appropriate bedding and clothing. The court also made orders concerning the child's medical and psychological care, requiring parental consent for appointments and mandating attendance at specific programs and professional consultations.

Judge Altobelli ordered equal shared parental responsibility for the child [X], with the child to live with the mother when not with the father. The court then set out a comprehensive schedule for the child's time with the father, detailing specific days, times, and holiday periods, with provisions for agreement between the parties or, in the absence of agreement, specific default arrangements. The orders also included stipulations regarding the exchange of the child at school, parental conduct, and the management of the child's passport and overseas travel. Furthermore, the court mandated that both parents attend the "Keeping Kids in Mind Program" and engage with a clinical psychologist, Mr. G, for assistance with the implementation of the orders and ongoing shared parenting. The mother was also directed to seek psychiatric advice and treatment.

Orders

Orders of the court

The parties have equal shared parental responsibility for the child [X] born [in] 2008.

The child [X] live with the mother when not living with the father in accordance with these orders.

That the child [X] live and communicate with the father:

(a) Until the end of the first term school holidays in 2014 each alternate weekend from after school Thursday to the commencement of school on Monday in Week 1 commencing the first Thursday after the date of these orders; and

(b) Each alternate Thursday from after school to the commencement of school Friday, commencing the second Thursday after the date of these orders and

(i) each alternate weekend from after school Thursday to the following Monday morning in Week 1; and

(ii) each alternate Wednesday to the following Friday before school in Week 2.

(d) For half of the first, second and third term school holidays as agreed or in the absence of agreement, for the first half in even-numbered years and the second half in odd-numbered years.

(e) For two weeks in the 2013/2014 school holidays and thereafter half the Christmas holidays as agreed, and in the absence of agreement, the first half in even years and the second half in odd years, excluding the Christmas public holiday period.

(f) From after school Easter Thursday until 6pm Easter Saturday in even years and from 6pm Easter Saturday until 6pm Easter Monday in odd years.

(g) By telephone on Tuesday at 6pm when the child is not with the Father.

(h) During the Christmas public holiday period as agreed or failing agreement, from 12 noon Christmas Eve to 2pm Christmas Day in even-numbered years and from 2pm Christmas Day to 6pm Boxing Day in odd-numbered years.

(i) On Father’s Day, if not already spending time with the child, from 9am to 6pm.

(j) On [X]’s birthday as agreed or failing agreement from 3pm to 6pm.

That the father’s time be suspended on Mother’s Day from 9am to 6pm.

That the father’s time be suspended from after school Easter Thursday until 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday to 6pm Easter Monday in even numbered years.

That for the purposes of calculating the child’s time with the parent in accordance with Order 3, the school holidays will be deemed to commence on the last day of the school term and conclude on the day before the commencement of the school term at 5pm and time on the weekend and during the week as provided for in these orders will be suspended during school holidays.

That for the purposes of implementing these Orders, unless otherwise stated, the child will be collected from and returned to the child’s preschool or school and where the child’s preschool or school is not available, at an agreed venue between the parties or in the absence of agreement at the [omitted] swimming pool and park area at [omitted].

That each party shall seek the other’s consent for any overseas travel and shall give no less than three (3) months’ notice to the other party and provision thereof a minimum of 14 days before travel and evidence of return air tickets, proposed itinerary and telephone contact details overseas.

The mother shall retain the child’s passport and shall provide the passport to the father within a reasonable time of any proposed travel as agreed, or in the absence of agreement, 28 days prior to the proposed travel and the father shall return the passport to the mother on return from any overseas trip with the child.

10.

That both parties will use their best endeavours to ensure that the child is not exposed to cigarette smoking in enclosed environments.

11.

Neither party will denigrate the other or allow third parties to denigrate the other in the presence or hearing of the child. Both parties will be civil to each other at all times in [X]’s presence or in her vicinity.

12.

That each parent ensure that [X] has appropriate separate bedding whenever she lives with them.

13.

That the father ensure that he is always appropriately clothed when in the presence or vicinity of [X].

14.

Neither party will make an appointment for the child to meet with a psychiatrist or psychologist without the other party’s written consent or Order of the Court.

15.

The mother will provide such authority as may be required to the child’s school to enable the father to obtain a copy of the child’s school reports, school newsletters and such other information as may relate to the child’s progress and participation at school and both parents are entitled to attend events at school or outside school involving [X] to which parents are normally invited.

16.

Both parties will (if they have not already done so) attend as soon as practicable Keeping Kids in Mind Program conducted by both Unifam and Centacare, and will forward to the other party a copy of Certificate of Completion.

17.

Each party will provide the other with a contact telephone number and will advise the other party within forty-eight (48) hours of any change in telephone contact number.

18.

That both parents shall forthwith attend upon Mr G, Clinical Psychologist, with respect to implementation of these Orders and the ongoing shared parenting of [X], and shall have leave to provide to

Mr G a copy of the report of Dr M dated 29 October 2012 and a copy of these reasons.

19.

Each party will advise the other as soon as practicable of any medical emergency involving the child, including the name of treating doctor, details of hospitalisation, if any, and details as to medication.

20.

That the mother shall forthwith attend upon her general practitioner forthwith and obtain a referral to a psychiatrist for advice and treatment and shall provide to the said psychiatrist a copy of the report of Dr M dated 29 October 2012 and a copy of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.