McGee and McGee (No.3) - [2011] FMCAfam 600

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCGEE & MCGEE (No.3)

[2011] FMCAfam 600

FAMILY LAW – Children – mother seeking to relocate from Darwin to Melbourne with two very young children aged 3 years and 19 months – in the alternative seeking a delay order for relocation whereby court orders relocation to occur in 2014 – conflicting recommendations by family report writer as to a delay order – whether a delay order suitable where parties have minimal communication and have not co-parented since separation – father has had limited supervised time with the children – meaningful relationship not established with the younger child – interim orders have been problematic – Skype orders not successful – history of family violence prior to separation – where parties parents have become entrenched in the dispute – need for order to be an interim order.

Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61DA, 65DAA

Ahcraft & Haber [2010] FamCA 6
D & K [2006] FMCAfam309
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Height & Rhett [2010] FMCAfam 1268
M & S (formerly E) (2007) FLC 93-313
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR (2010) HCA4
Russo v Aiello (2003) 215 CLR 643

Applicant:

MS MCGEE

Respondent:

MR MCGEE

File Number:

DNC 352 of 2010

Judgment of:

L. Turner FM

Hearing dates:

12, 13 & 14 January 2011 and
4, 5, 6 & 7 April 2011

Date of Last Submission:

7 April 2011

Delivered at:

Darwin

Delivered on:

20 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Giacomo

Solicitors for the Applicant:

Ward Keller

Counsel for the Respondent:

Ms Farmer

Solicitors for the Respondent:

Withnalls Lawyers

ORDERS UNTIL FURTHER ORDER

That the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009 live with the mother in Darwin, Northern Territory.
That until further court order the mother is hereby restrained and an injunction issue restraining her from moving the place of residence of the children from Darwin, Northern Territory.
That the mother and father have equal shared parental responsibility for the children.
That each parent have responsibility for making decisions about the day to day care welfare and development of the children whilst the children are in their respective care.
That until [date omitted] 2012, that being [Y]’s third birthday the father spend time with the children as follows:-
(a)Commencing 25 June 2011 each alternate Saturday from 9.00am to 5.00pm;
(b)Commencing 2 July 2011 each alternate Sunday from 9.00am to 5.00pm, but should this time coincide with Mother’s Day then time with the father for Mothers Day will be suspended and the father will have make up time with the children the following Sunday from 9.00am to 5.00pm;
(c)Every Wednesday from 3.00pm to 6.00pm;
(d)For each of the child’s birthday, from 3.00pm to 6.00pm on the day of the child’s birthday;
(e)For the father’s birthday from 3.00pm to 6.00pm;
(f)Christmas Day…

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 McGee and McGee (No.3)

Details

AGLC: McGee and McGee (No.3) [2011] FMCAfam 600
Case: [2011] FMCAfam 600
Decision Date: 20 June 2011

CaseChat Overview and Summary

McGee and McGee (No.3) was a case in the Federal Magistrates Court of Australia concerning the care and custody of the children born from the marriage of the parties. The case revolved around the allocation of parental responsibilities and the specific arrangements for the children's time to be spent with each parent.

The court was tasked with determining the living arrangements for the children, the allocation of parental responsibilities, and the detailed schedule for the children's time with each parent. The court also needed to decide on the conditions under which the children could spend overnight time with the father, as well as the conditions for extended holiday periods and communication between the parents.

In delivering the judgment, the court ruled that the children would reside with the mother in Darwin, Northern Territory. It granted the father specific visitation rights, initially limited to daytime and weekend visits, but subject to conditions such as the father's demonstration of overnight care capability through a psychologist's report. The court also specified the detailed schedule for the father's time with the children, which increased in complexity as the children aged. The court ordered that the parents share equal parental responsibilities and detailed the arrangements for changeovers, communication, and the prohibition of physical discipline. The court also mandated that the parents refrain from engaging in any activities that might denigrate the other parent in front of the children. The case was set for a mention to address unresolved issues, with a potential for an updated family report and an urgent hearing if necessary.

The court's orders, which were comprehensive, covered a range of issues from the children's residence and visitation schedules to communication and disciplinary practices. The orders were designed to ensure the children's welfare and to provide a structured environment for their upbringing, with specific provisions for the father's increasing involvement in the children's lives.

Orders

Orders of the court

ORDERS UNTIL FURTHER ORDER That the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009 live with the mother in Darwin, Northern Territory.That until further court order the mother is hereby restrained and an injunction issue restraining her from moving the place of residence of the children from Darwin, Northern Territory.That the mother and father have equal shared parental responsibility for the children.That each parent have responsibility for making decisions about the day to day care welfare and development of the children whilst the children are in their respective care.That until [date omitted] 2012, that being [Y]’s third birthday the father spend time with the children as follows:-(a) Commencing 25 June 2011 each alternate Saturday from 9.00am to 5.00pm;(b) Commencing 2 July 2011 each alternate Sunday from 9.00am to 5.00pm, but should this time coincide with Mother’s Day then time with the father for Mothers Day will be suspended and the father will have make up time with the children the following Sunday from 9.00am to 5.00pm;(c) Every Wednesday from 3.00pm to 6.00pm; (d) For each of the child’s birthday, from 3.00pm to 6.00pm on the day of the child’s birthday;(e) For the father’s birthday from 3.00pm to 6.00pm;(f) Christmas Day from 2.00pm to 7.00pm;(g) Father’s Day from 9.00am to 5.00pm;(h) For two one weeks blocks per year, from 9.00am to 5.00pm each day, provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;(i) At all other times as agreed upon between the parties.That upon [Y] turning three years of age on [date omitted] 2012, and upon the father producing to the mother a written report from a psychologist supporting the father spending overnight time with the children, the father spend time with the children as follows:-(a) Commencing 8 September 2012 every alternate weekend from 9.00am Saturday to 9.00am Sunday, but should Mothers Day fall on the Sunday then the father is to return the children to the mother at 5.00pm on the Saturday;(b) Commencing 16 September 2012 every alternate weekend from 5.00pm Sunday to 8.30am Monday;(c) Every Wednesday from 3.00pm to 6.00pm;(d) For the father’s birthday from 3.00pm to 6.00pm;(e) Christmas Day from 9.00am to 2.00pm;(f) Father’s Day from 9.00am to 5.00pm;(g) For two one weeks blocks per year, from 9.00am to 5.00pm each day, with an overnight on the Wednesday night provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;(h) Such other times as are agreed upon between the parties. That in the event that the father does not produce a written report from a psychologist as required in Order 6, then the father’s time with the children will continue in accordance with Order 5, and then after production of the report, in accordance with Order 6.That provided the father has been spending overnight time with the children in accordance with Order 6 for a period of 9 months or more, then upon [Y] turning four years of age on [date omitted] 2013 the father spend time with the children as follows:-(a) Commencing 7 September 2013 every alternate weekend from 9.00am Saturday to 5.00pm Sunday but should this time coincide with Mother’s Day then time with the father for Mothers Day will be suspended and the father will return the children to the mother at 5.00pm Saturday and the father will have make up time with the children the following weekend from 5.00pm Saturday to 5.00pm Sunday;(b) Every Wednesday from 5.00pm Wednesday to 8.30am Thursday;(c) For the father’s birthday from 3.00pm to 6.00pm;(d) Christmas Day from 2.00pm to 7.00pm;(e) Father’s Day from 9.00am to 5.00pm;(f) For two one weeks blocks per year, from 9.00am to 5.00pm each day, with an overnight on the Monday, Wednesday and Friday nights provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;That if by [Y]’s fourth birthday the father has not spent nine months of overnight time with the children in accordance with Order 6, then time with the children is to continue in accordance with Order 6, and at the expiration of 9 months of overnight time, the father’s time with the children will be in accordance with Order 8. That unless otherwise agreed between the parties in writing, changeover will occur either at the children’s day care facility or at Catholic CareNT. That time with the father is suspended for the mother’s birthday on [date omitted] each year. That the mother is entitled to two extended holiday period per year of two weeks each with the children, such extended holiday periods not to include Christmas day or the children’s birthdays, provided the mother give to the father six weeks written notification setting out the dates of the holiday and providing details as to dates of the make up time for father, such make up time to be equivalent to the time missed by the father due to the mother spending holiday time with the children.That the father have telephone communication with the children when they are not in the father’s care every Monday evening at 7.00pm with the father to instigate the call to a landline number or mobile number, such number to be provided by the mother forthwith.That the mother forthwith provide to the father a communication book, such communication book to be used, written in and read by the parties only, with the parties to use the communication book to exchange information as to issues regarding the care welfare and development of the children, and in respect to changeover, holiday and make up time arrangements, and any other requirements for the use of the book as set out in these orders. That neither party is to physically discipline the children, or allow another adult in their presence to physically discipline the children.That the father will:-(a) not consume alcohol whilst the children are in his care;(b) ensure that the children wear bike helmets if bike riding;(c) apply sunscreen if the children are outside and ensure that the children wear hats,(d) not swear around the children.That unless otherwise agreed, neither parent is to attend at the other parents home or work address for any purpose in respect to the carrying out of these orders.That the parties will not denigrate each other to the children or in the presence or hearing of the children at any time and shall take steps to remove the children from the presence of any other person denigrating the other party. That the mother provide the necessary authority to the children’s medical practitioners to enable the father to obtain copies of any medical certificates and reports.That in the event either child requires a medical appointment or a hospital visit whilst in either parents care then the other parent is to be notified as soon as practicable as to the condition of the child and full details as to the medical appointment or the hospital appointment and are subsequently to be advised of any medicines required to be taken by the child or other medical treatment the child is to receive.That the mother provide details to the father as to the day care facilities that the children attend and further provide the necessary authority to any day care facility to enable the father to collect and return the children that facility in accordance with these orders.That each parent provide to the other parent within 24 hours written notification of any change in their home or work address, home, work or mobile telephone number or email address. That the matter is listed for mention in the Federal Magistrates Court Of Australia at Darwin on 3 June 2014 at 9.30am and if by that date the issue of relocation has not been resolved between the parties, then an updated family report will be ordered and directions will be made to progress the matter to an urgent hearing on a final basis.That if prior to the mention date either party wishes to bring an application for children’s matters including a contravention application then unless urgency is established, the parties must, prior to filing of an application, attend counselling or mediation to address the disputed issues.That should the counselling or mediation prove unsuccessful, then written proof of the counselling or mediation must be provided to the Court prior to the filing of any application. That pursuant to section 65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of 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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