MCCORMICK & GRAFT

Case [2015] FamCA 1043


FAMILY COURT OF AUSTRALIA

MCCORMICK & GRAFT [2015] FamCA 1043
FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the father – the mother spending time with the children is conditional upon completing a course – the father to complete a parenting course – where any perceived risk can be ameliorated by undertaking relevant courses – where the mother refused to divulge any detail of her present living arrangements – where communication between the parties is very poor – where the mother should have a gradual re-introduction with the children.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 70NAE, 102QB

Evidence Act 1999 (Cth) s 140

McCormick & Graft [2015] FamCA 121
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Mr McCormick
RESPONDENT: Ms Graft
INDEPENDENT CHILDREN’S LAWYER: Ms Cope
FILE NUMBER: CSC 301 of 2009
DATE DELIVERED: 26 November 2015
PLACE DELIVERED: Brisbane
PLACE HEARD: Cairns
JUDGMENT OF: Tree J
HEARING DATE: 9, 10, 11 and 12 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd
SOLICITORS FOR THE APPLICANT: Preston Law
THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms McArdle
SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Cope Family Law

Orders

PARENTAL RESPONSIBILITY

  1. All previous parenting orders be forthwith discharged.

  2. Mr McCormick (“the father”) have sole parental responsibility for G born … 2005 and H born … 2006 (“the children”).

  3. The father is to advise Ms Graft (“the mother”) in writing within seven (7) day of making any decision about a major long term issue.

  4. For the purposes of these Orders a major long-term issue shall include, but is not limited to issues about the children’s:

    (a)Any medical or health matter concerning the children with both parties to be equally able to access medical, personal and the medical files of the children;

    (b)Any medical or health matter affecting the father which may affect the ability of the father to care for the children;

    (c)Matters relating to the education of the children including, but not limited to, the choice of schools and curriculums;

    (d)Disciplinary matters other than of a trivial nature;

    (e)Matters concerning the social development and sporting activities of the children.

LIVING ARRANGEMENTS

  1. The children live with the father.

  2. Upon the mother complying with order 11, then she will spend time with the children during school holidays as follows:-

    (a)For the first half of the Queensland gazetted school holidays in…

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AGLC
MCCORMICK & GRAFT [2015] FamCA 1043
Case
[2015] FamCA 1043
Decision Date

CaseChat Overview and Summary

The case involved Mr McCormick (the father) and Ms Graft (the mother) concerning parenting orders for their two children. The dispute centred on the parental responsibility, living arrangements, and communication between the parents and the children. Tree J presided over the proceedings.

The court was required to determine the extent of parental responsibility each parent would have, including decision-making regarding major long-term issues. It also needed to establish the children's living arrangements and the specific times each parent would spend with them. Further issues included the nature and frequency of communication between the parents and between each parent and the children, as well as provisions for special occasions and the exchange of information regarding the children's education and health. The court also considered orders relating to the parents' behaviour towards each other and the children, and the process for resolving future disputes.

Tree J ordered that the father have sole parental responsibility for the children, with the father to advise the mother in writing of any decisions concerning major long-term issues within seven days. Major long-term issues were defined to include medical and health matters, education, disciplinary matters beyond the trivial, and social development and sporting activities. The children were ordered to live with the father. The mother's time with the children was made conditional upon her completing a specific course and filing a certificate of completion with the court. Specific arrangements were detailed for the mother to spend time with the children during school holidays and on specific weekends during school terms, with defined changeover locations and communication protocols, including email for non-emergency communication between the parents.

The court also made orders regarding communication on special occasions, authorising both parents to access information about the children's education and health from relevant institutions. Provisions were included for parents to attend children's functions and for parents to behave respectfully towards each other and refrain from discussing the proceedings in the children's presence. The father was ordered to enrol in and complete a Parenting Orders Program. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed, with the matter removed from the active list.

Orders

Orders of the court

PARENTAL RESPONSIBILITY

1.

All previous parenting orders be forthwith discharged.

2.

Mr McCormick (“the father”) have sole parental responsibility for G born … 2005 and H born … 2006 (“the children”).

3.

The father is to advise Ms Graft (“the mother”) in writing within seven (7) day of making any decision about a major long term issue.

4.

For the purposes of these Orders a major long-term issue shall include, but is not limited to issues about the children’s:

(a) Any medical or health matter concerning the children with both parties to be equally able to access medical, personal and the medical files of the children;

(b) Any medical or health matter affecting the father which may affect the ability of the father to care for the children;

(c) Matters relating to the education of the children including, but not limited to, the choice of schools and curriculums;

(d) Disciplinary matters other than of a trivial nature;

(e) Matters concerning the social development and sporting activities of the children.

LIVING ARRANGEMENTS

5.

The children live with the father.

6.

Upon the mother complying with order 11, then she will spend time with the children during school holidays as follows:-

(a) For the first half of the Queensland gazetted school holidays in even years;

(b) For the second half of the Queensland gazetted school holidays in odd years.

7.

The school holidays are deemed to be as follows:

(a) They shall commence at noon on the first Saturday after the conclusion of the school term, and

(b) They shall conclude at noon on the last Saturday prior to the first day of the next school term.

8.

The midpoint of the school holidays shall be deemed to be as follows:

(a) at noon on the Saturday where there is an even number of weeks; and

(b) at noon on the Wednesday where there is an odd number of weeks.

9.

Upon the mother complying with order 11, then she spend time with the children during school terms on the third week of each calendar month with the children to come into the mother’s care at 8.00pm on the Friday (or if Friday is a public holiday then 8.00pm on the Thursday) and to be returned to the father’s care at noon on the Sunday (or where the Monday is public holiday or pupil free day then noon on the Monday).

10.

The mother may have such additional or other time with the children as may be agreed between the parties in writing.

11.

The mother’s time with the children under these orders is conditional upon the mother first completing the Focus on Kids Course with Relationships Australia and filing the certificate of completion with this Honourable Court.

CHANGEOVER

12.

Changeovers are to take place at the children’s playground at the I Park in J Town.

COMMUNICATION

13.

The mother is to have telephone communication with the children each Thursday and Sunday between the hours of 6.30pm and 7.00pm with the mother to initiate the phone calls and the Father to make the children available to take those calls in privacy.

14.

The mother and father shall communicate with each other solely by email other than in the case of an emergency.

SPECIAL OCCASSIONS

15.

When the children are in the father’s care on the children’s birthdays, Mother’s Day and the mother’s birthday the mother may contact the children by phone with the mother to initiate the call between 6.30pm and 7.00pm and the Father will make the children available to take those calls in privacy.

16.

When the children are in the mother’s care on the children’s birthdays, Father’s Day and the father’s birthday the father may contact the children by phone with the father to initiate the call between 6.30pm and 7.00pm and the mother will make the children available to take those calls in privacy.

17.

When the children are in the mother’s care on Christmas Day the father may contact the children by phone with the father to initiate the call between 9.00am and 10.00am and the mother will make the children available to take those calls in privacy.

18.

When the children are in the father’s care on Christmas Day the mother may contact the children by phone with the mother to initiate the call between 9.00am and 10.00am and the father will make the children available to take those calls in privacy.

19.

Each parent may have additional or other time with the children as may be agreed between the parties in writing.

AUTHORITY GIVEN BY THESE ORDERS

20.

These Orders act as authority to the children’s schools and day care providers to provide each parent (at that parent’s expense) information about the children’s education, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents.

21.

These Orders act as authority to each of the children’s medical practitioners and health care providers (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s health, treatment and copies of records and reports.

22.

The father will ensure that the schools attended by the children, and the children’s usual treating medical practitioners and health care providers (including counsellors and psychologists) are provided with a copy of these Orders.

23.

Both parents are at liberty to attend all educational, extra-curricular functions, events and activities the children may be involved in or which parties are normally invited within the guidelines and subject to the discretion of the children’s school.

PARENTS’ BEHAVIOUR

24.

That during the time the children are with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent.

(b) Speak of the other parent respectfully.

(c) Not denigrate or insult the other parent or other family members in the presence or hearing of the children.

(d) Use their best endeavours to prevent any other person denigrating or insulting the other parent or other family members in the presence or hearing of the children.

(e) Not discuss the contents of this Order or these proceedings in the hearing or presence of the children.

(f) Use their best endeavours to prevent any other person discussing these proceedings in the hearing or presence of the children.

(g) Use their best endeavours to prevent the children having access to documents filed in these proceedings

25.

The parents shall attend mediation with the assistance of a suitably qualified mediator to assist them with implementation of the Orders or other parenting issues as they arise from time to time.

PARENTAL NOTIFICATIONS

26.

Each parent will keep the other advised of their home address, email address, Skype, landline and mobile telephone numbers and shall advise each other of any change forthwith upon that change and in any event within 24 hours.

27.

Each party shall advise the other of any emergency (including but not limited to medical) regarding the children forthwith.

CONTRAVENTION PENALTY

28.

That within 7 days of these orders, the father enrol in the next available Parenting Orders Program, and ensure that he completes that programme within six months of these orders, and provide evidence of the completion of it to the mother

OTHER ORDERS

29.

The Independent Children’s Lawyer be forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period from these orders, or the conclusion of any appeal that may be brought.

30.

Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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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