McKay and McKay - [2013] FCCA 874

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKAY & MCKAY

[2013] FCCA 874

Catchwords:
FAMILY LAW – Parenting – parental responsibility and with whom the child should live – agreement to equal shared parental responsibility – consideration of equal time or substantial and significant time – finding equal time impracticable and not in the child’s best interests – determination of significant and substantial time as appropriate – consideration of issues as to the mother’s mental health and capacity or willingness to foster a relationship between the father and the child subsequent to conclusion of court proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1) & (2), 60CA, 60CC(1)-(3), 65DAA

Cases cited:

Lansa & Clovelly [2010] FamCA 80

Applicant:

MR MCKAY

Respondent:

MS MCKAY

File Number:

BRC 10247 of 2011

Judgment of:

Judge Coker

Hearing dates:

15 & 16 May 2013

Date of Last Submission:

16 May 2013

Delivered at:

Townsville

Delivered on:

2 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Cullen

Solicitors for the Applicant:

Hall Payne

Counsel for the Respondent:

Ms Umasher

Solicitors for the Respondent:

Davey Law

ORDERS

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2008, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.
That the child live with the Mother.
That the child spend time with Father at all reasonable times as may be agreed and in particular:
(a)During the gazetted school term, from after school Wednesday to before school Monday, or Tuesday should the Monday be a public holiday or pupil-free day, with such time to commence in each school term as and from the first Wednesday of that new school term.
(b)Time provided pursuant to order 5(a) herein be suspended during the gazetted school holidays.
(c)During the gazetted school holiday period, for the first half in odd numbered years and the second half in even numbered years, as per the definition contained in these Orders.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT…

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 McKay and McKay

Details

AGLC: MCKAY & MCKAY [2013] FCCA 874
Case: [2013] FCCA 874
Decision Date: 2 August 2013

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Coker in the Federal Circuit and Family Court of Australia. The dispute involved the Mother and the Father regarding the upbringing and care of their child, X.

The court was required to determine the extent of each parent's responsibility for the major long-term issues concerning the child, including education, religious and cultural upbringing, health, name, and significant changes to living arrangements. Additionally, the court needed to establish the practical arrangements for the child's living situation, time spent with each parent, and communication protocols.

Judge Coker ordered that the Mother and Father have equal shared parental responsibility for major long-term issues, requiring them to consult and make genuine efforts to reach joint decisions. Notwithstanding this, the Mother was assigned responsibility for the child's day-to-day care while the child was with her, and the Father for the child's day-to-day care while the child was with him. The child was ordered to live with the Mother, with specific provisions for the Father to spend time with the child during school terms and holidays, including detailed arrangements for school holidays and special days. The orders also addressed the child's schooling, medical information sharing, communication, and parental conduct.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2008, including but not limited to:

(a) the child’s education (both current and future);

(b) the child’s religious and cultural upbringing;

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 1 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.

That the child live with the Mother.

That the child spend time with Father at all reasonable times as may be agreed and in particular:

(a) During the gazetted school term, from after school Wednesday to before school Monday, or Tuesday should the Monday be a public holiday or pupil-free day, with such time to commence in each school term as and from the first Wednesday of that new school term.

(b) Time provided pursuant to order 5(a) herein be suspended during the gazetted school holidays.

(c) During the gazetted school holiday period, for the first half in odd numbered years and the second half in even numbered years, as per the definition contained in these Orders.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(d) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(e) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(f) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

That the child spend time with each parent on special days or occasions as follows:

(a) That should the child not be in the care of the Father on Father’s Day, then the Father is to spend time with the child from 9.00am until 5.00pm;

(b) That should the child not be in the care of the Mother on Mother’s Day, then the Mother is to spend time with the child from 9.00am until 5.00pm;

(c) That should the child not be in the care of the Father on the Father’s birthday, then the Father will spend time with the child for at least two hours if a school day, or from 9.00am until 5.00pm if a non-school day;

(d) That should the child not be in the care of the Mother on the Mother’s birthday, then the Mother will spend time with the child for at least two hours if a school day, or from 9.00am until 5.00pm if a non-school day;

(e) On the child’s birthday, the parent with whom the child is not living spend time with the child for not less than two hours if a school day from 5.00pm until 7.00pm and if a non-school day for four hours from 1.00pm until 5.00pm.

That unless otherwise agreed between the parents then the child shall remain in attendance at the (omitted) State School for the duration of her primary school education and that the parents shall properly consult with each other with regard to the child’s enrolment at a secondary school.

That the Mother and the Father shall:

(a) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

(b) Authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.

10.

That the parents keep the other informed of the names and addresses of any treating medical or health professionals and shall authorise those medical or health professionals to provide the other parent with information they may seek in relation to the health of the child.

11.

Each parent facilitate the child’s attendance at school, sporting and cultural activities and at extra-curricular sporting and cultural activities, including at training practice, games, examinations and concerts.

12.

That the Mother and the Father shall keep the other parent advised at all times of their residential address and contact telephone number and will advise within 48 hours of any change in respect of residential address or telephone number.

13.

That the parent not having the child in their care shall communicate with the child by telephone at all reasonable times as may be agreed between the parents, with the parent not having the child in their care to be responsible for making the call and the parent having the child in their care to ensure the child is available to take the call in a quiet and private environment.

14.

Each parent be at liberty to attend any of the child’s school or extra-curricular activities and, in particular, any educational attendances including parent-teacher interviews, presentations and the like.

15.

That each parent be restrained from denigrating the other in the presence of the child or from allowing the child to remain in the presence of any other person acting in such a way.

16.

That the parents sign all documents necessary to obtain a passport for the child and unless otherwise agreed, that passport be held by the Registry Manager of the Family Law Courts at Brisbane, to be released upon request of both parties, such request not to be unreasonably withheld.

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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