McCarthy and Lambert and Anor - [2016] FCCA 641

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCARTHY & LAMBERT & ANOR

[2016] FCCA 641

Catchwords:
FAMILY LAW – Application by paternal grandmother to spend time with her grandchildren – parents have been separated for years but have cooperative arrangement in place without any formal orders in place – grandmother’s relationship with her son and the mother have completely broken down.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 65C, 60CC

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited:
Church v Overton & Anor (2008) 40 Fam LR 357

Applicant:

MS MCCARTHY

First Respondent:

MS LAMBERT

Second Respondent:

MR MCCARTHY

File Number:

DGC 2184 of 2013

Judgment of:

Judge Harland

Hearing date:

21 March 2016

Date of Last Submission:

21 March 2016

Delivered at:

Dandenong

Delivered on:

24 March 2016

REPRESENTATION

The Applicant:

Self-represented

The First Respondent:

Self-represented

The Second Respondent:

Self-represented

ORDERS

The mother and the father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 (“the children”).
That the applicant Ms McCarthy, spend time with the children from 10:00am to 4:00pm on the last Sunday of March, June and October each year.
The handover location will take place as agreed and failing agreement as nominated by the mother.
That until Y turns 7 years old, the maternal grandmother Ms H shall be in substantial attendance (if she is available). If the maternal grandmother is not available the visit will still take place.
All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym McCarthy & Lambert & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2184 of 2013

MS MCCARTHY

Applicant

And

MS LAMBERT

First Respondent

And

MR MCCARTHY

Second Respondent

REASONS FOR JUDGMENT

These proceedings concern X, born on (omitted) 2009, aged 6 and Y born (omitted) 2010 aged 5.
The paternal grandmother commenced proceedings on 7 August 2013. The first and second respondents are the children’s parents.
The parents have been separated since 2011. They have a cooperative relationship and have never needed any formal agreement. The father sees the children on alternate weekends, half the school holidays and half of the special days. The parents are united in their opposition to the paternal grandmother spending any increased time with the children than she already does.
The relationship between the grandmother on the one side and the parents on the other has completely broken down. The parents view the grandmother’s application as intrusive and controlling and place an emphasis on the fact that the grandmother also took her daughter to court to seek spend time orders with respect to her daughter’s children. Each side describes the other as inflexible and unwilling to compromise.
The father said that his mother abused him as a child and that he does not want anything to do with her. He says he has not seen his sister for years 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 McCarthy and Lambert and Anor

Details

AGLC: McCarthy and Lambert and Anor [2016] FCCA 641
Case: [2016] FCCA 641
Decision Date: 24 March 2016

CaseChat Overview and Summary

In *McCarthy and Lambert and Anor*, heard before Judge Harland, the dispute concerned parenting orders for two children, X and Y. The applicant, Ms McCarthy, sought specific arrangements for spending time with the children, while the respondents, Mr Lambert (the father) and Ms H (the maternal grandmother), were also involved in the proceedings.

The court was required to determine the nature of parental responsibility for the children and to establish a schedule for Ms McCarthy to spend time with them. Additionally, the court needed to address the role of the maternal grandmother in the children's lives during specific periods and to make final orders regarding all outstanding applications.

Judge Harland ordered that the mother and father share equal parental responsibility for the children. Ms McCarthy was granted specific, limited time with the children, to occur on the last Sunday of March, June, and October each year, between 10:00 am and 4:00 pm. The location for handovers was to be agreed upon by the parties, or failing agreement, nominated by the mother. The court also stipulated that until the younger child, Y, turned seven years old, the maternal grandmother, Ms H, was to be substantially in attendance during Ms McCarthy's visits, provided she was available, though the visits were to proceed even if Ms H was unavailable. All other extant applications were dismissed.

Orders

Orders of the court

1. The mother and the father are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 (“the children”).

2. That the applicant Ms McCarthy, spend time with the children from 10:00am to 4:00pm on the last Sunday of March, June and October each year.

3. The handover location will take place as agreed and failing agreement as nominated by the mother.

4. That until Y turns 7 years old, the maternal grandmother Ms H shall be in substantial attendance (if she is available). If the maternal grandmother is not available the visit will still take place.

5. All extant applications be otherwise dismissed.

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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