McLory and McLory - [2011] FamCA 364

FAMILY COURT OF AUSTRALIA

McLORY & McLORY

[2011] FamCA 364

FAMILY LAW - CHILDREN – Best interests of the child – Parenting orders – where there are allegations that the father sexually abused the child – where investigations by both the Department of Communities (Child Safety) and the Queensland Police Service concluded that the father had not sexually abused the child – where mother has previously withheld the child – where there is evidence that the mother seeks an enmeshed relationship with the child – where the father has been a recreational drug user – whether the father is an unacceptable risk to the child – with whom the child should live – with whom the child should spend time – where child to remain living with the mother – where child to spend substantial and significant unsupervised time with the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
Browne v Dunn (1894) 6 The Reports 67
Donaghey & Donaghey [2011] FamCA 13
Goode & Goode [2006] FamCA 1346
Hardie v Capris [2010] FamCA 1046
In the Marriage of Ferguson (1978) 4 Fam LR 312
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Read & Read (1984) FLC 91-527
U v U (2002) 211 CLR 238

APPLICANT:

Ms McLory

RESPONDENT:

Mr McLory

INDEPENDENT CHILDREN’S LAWYER:

Emerson Family Law

FILE NUMBER:

BRC

8082

2008

DATE DELIVERED:

12 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

23 June and 30, 31 August and 1 September 2010 and 18 March and 5 April 2011.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sara

SOLICITOR FOR THE APPLICANT:

BM Law

THE RESPONDENT:

Mr McLory in person.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kirkman-Scroope (23 June 2010)
Ms Martin (30, 31 August and 1 September 2010)

Mr Cooper (18 March and 5 April 2011)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emerson Family Law

Orders

IT IS ORDERED THIS DAY THAT

All previous orders, in so far as they apply to the V (‘the child’) born … February 2008, are discharged, and in lieu, it is ordered as follows:

Parental Responsibility

IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (‘the Act’) is rebutted in the best interests of the child.
The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a.Use her best endeavours to advise the father in writing of the decision intended to be made;
b.Seek the father’s written response in relation thereto;
c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d.Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Each…

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 McLory and McLory

Details

AGLC: McLory and McLory [2011] FamCA 364
Case: [2011] FamCA 364
Decision Date: 12 April 2011

CaseChat Overview and Summary

This case concerned orders made by Murphy J in the Family Court of Australia regarding the parental responsibility, living arrangements, and property of the parties, Mr and Mrs McLory, in relation to their child, V. The central dispute revolved around the best interests of the child, particularly in light of the presumption of equal shared parental responsibility.

The court was required to determine whether the presumption of equal shared parental responsibility should be rebutted and, if so, to make orders concerning parental responsibility for major long-term issues. Additionally, the court needed to establish the child's living arrangements and the time the child would spend with each parent, as well as address travel restrictions and property settlement. The father was also required to undergo random drug testing.

Murphy J declared that the presumption of equal shared parental responsibility was rebutted in the best interests of the child. Consequently, the mother was granted sole parental responsibility for major long-term issues, with specific requirements for her to consult with the father in writing before making any ultimate decisions. The court ordered that the child live with the mother and detailed specific arrangements for the child to spend time with the father, with provisions for notification of emergencies, contact details, and travel restrictions. The father was also ordered to submit to random drug testing at his own expense. In terms of property, each party was to retain property in their possession, and the husband was to ensure his company was solely responsible for its debts and indemnify the wife for any company debts for which she might be liable.

Orders

Orders of the court

IT IS ORDERED THIS DAY THAT

All previous orders, in so far as they apply to the V (‘the child’) born … February 2008, are discharged, and in lieu, it is ordered as follows:

Parental Responsibility

IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (‘the Act’) is rebutted in the best interests of the child.

The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

a. Use her best endeavours to advise the father in writing of the decision intended to be made;

b. Seek the father’s written response in relation thereto;

c. Consider, by reference to the best interests of the child, any such response prior to making any such decision;

d. Advise the father in writing as soon as reasonably practicable of her ultimate decision.

Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:

a. Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;

b. Any school which the child attends;

c. The Director of any extra-curricular school or other activity in which the child is involved,

to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.

Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.

Each of the parties shall advise the other and keep the other advised of:

a. Their residential address;

b. Telephone numbers at which they and the child can be contacted;

c. Any email address to which the child can have access,

and shall notify any changes in any such details within 48 hours.

Travel Outside of Australia

The parties each be restrained from removing the child and/or causing the removal of the child from the Commonwealth of Australia without the prior written consent of the other parent or an Order of the Court.

In the event that either party provides their written consent, they shall do all things and sign all necessary documents to affect the temporary removal of the child’s name from the airport watch list to the extent necessary to facilitate the child’s overseas travel with the other parent.

The Australian Federal Police are requested to maintain the name of the child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and retain the child’s name on the Airport Watch List unless the permanent or temporary removal of the child’s name is allowed by an Order of the Court (including the current Order) or the written consent of both parties to remove the child’s name given not less than 28 days prior to the intended date of travel, and for that purpose the child’s name is to be removed at any time when she is permitted by Court order or the parties’ written consent to travel outside Australia.

10.

The mother’s lawyer and/or the mother forthwith deliver all original passport(s) for the child to the Registry Manager of the Brisbane Registry of the Family Court of Australia where such passports are to be held by the Court and that such passport(s) only be released upon further order of this Court.

Live With and Time

11.

The child shall live with the mother.

12.

The child shall spend time with the father at all such times as might be agreed in writing between the parties and, failing further or other agreement, as follows:

A. Until the Child commences prep or 1 February 2013:

Until the earlier of the child commencing preparatory school or 1 February 2013:

i) from 9:00 until 3.00pm on each of Tuesday and Thursday in each alternate week commencing Tuesday 19 April 2011; and

ii) from 5:00pm Friday until 5:00pm Sunday each alternate week commencing Thursday 14 April 2011.

B. From when the Child commences prep or 1 February 2013 until when the child commences Grade 2 or 1 February 2015:

From the earlier of the child commencing prep or 1 February 2013:

i) from the later of after school or 4.00pm on Thursday until the earlier of the commencement of school or 9.00am on the following Monday (or Tuesday if Monday is a public holiday or pupil-free day) each alternate week;

ii) For the first week of the June/July gazetted school holiday period; and

iii) For the first week of the September/October gazetted school holiday period; and

iv) For one week from 12:00 noon on New Year’s Day; and

v) For the last week of the Christmas School Vacation period (commencing and concluding on a Saturday).

C. From when the child commences Grade 2 or 1 February 2015:

From the earlier of the child commencing Grade 2 or 1 February 2015:

i) from after school Thursday until the commencement of school Tuesday each alternate week;

ii) For the first half of each gazetted school holiday period in 2015 and each alternate year thereafter and for the second half of each gazetted school holiday period in 2016 and each alternate year thereafter.

D. From the date of these Orders:

a) On the child’s birthday as follows:

i) In even numbered years from the earlier of 4.00pm or after school on the day before her birthday until the earlier of 9.00am or the commencement of school on her birthday;

ii) In odd numbered years from the earlier of 4.00pm or after school on her birthday until the earlier of 9.00am or the commencement of school on the day after her birthday;

iii) If the child’s birthday falls on a weekend from 12:00 noon until 6:00pm on the birthday and if her birthday falls on a day when, in accordance with these orders, the child would otherwise be spending time with the father, between those hours in the mother’s care.

b) On each of Mother’s Day with the mother and on Father’s Day with the father from 9:00am until 5:00pm.

c) From 2:00pm on Christmas Day until 2:00pm on Boxing Day in even numbered years and from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years.

13.

That the time the child is to spend with the father pursuant to these Orders be suspended during gazetted school holiday periods and the cycle shall recommence on the first weekend after school resumes.

14.

The father is at liberty to contact the child by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 7.00pm.

Drug testing

15.

The father shall submit to random drug testing at his own expense, at such times and places as directed by the Independent Children’s Lawyer in writing, but being not more than six times per calendar year, until the child commences preparatory school or 1 February 2013, whichever first occurs.

16.

The Independent Children’s Lawyer is discharged upon the expiration of the period specified in Order 15.

IT IS FURTHER ORDERED THAT:

Property

17.

Pursuant to s 79 of the Act IT IS ORDERED as and by way of settlement of property that:

a. Each party shall retain the property of whatever type or description currently in their respective possession to the exclusion of any right, title, claim or interest by the other in respect of same.

b. The husband shall cause the company C Pty Ltd (ACN …) of which he is the sole director to be solely responsible for its debts and shall cause the company to indemnify the wife in respect of any debts owed by the company for which she is, or might be liable including, but not limited to, the debt owed by C Pty Ltd to the company M & Co.

c. The wife shall forthwith abandon any right, title, claim or interest in the said company, including abandoning any claim for any alleged wages or other sums alleged to be owing to her by the company.

IT IS FURTHER ORDERED THAT:

18.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

19.

Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

20.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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.