McMurphy and McMurphy - [2019] FamCA 947

FAMILY COURT OF AUSTRALIA

MCMURPHY & MCMURPHY

[2019] FamCA 947

FAMILY LAW – PARENTING – Allegations of risk of harm – evaluation of risk both parents pose to the children – should orders be made for living arrangements of teenage children – whether an order should be made for equal shared parental responsibility or sole parental responsibility.

Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA

Re F: Litigants in Person Guidelines (2001) FLC 93-072
Bell & Nahos [2016] FamCAFC 244
McCall & Clark [2009] FamCAFC 92
Mazorski v Albright [2007] FamCA 520
M v M (1988) 166 CLR69
Stott & Holgar & Anor [2017] FamCAFC 152

APPLICANT:

Mr McMurphy

RESPONDENT:

Ms McMurphy

INDEPENDENT CHILDREN’S LAWYER:

K S Family Law

FILE NUMBER:

MLC

6417

2007

DATE DELIVERED:

11 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

21 – 24 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brown of Queen’s Counsel with Mr Schmidt

SOLICITOR FOR THE APPLICANT:

McMahon Fearnley Lawyers

THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

N / A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Jenkinson of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN LAWYER

KS Family Law

Orders

All previous parenting orders be discharged.

Parental Responsibility

The father have sole parental responsibility for the children X born … 2002 and Y born … 2004.
In the event the father makes any major long-term decision which involves exercising parental responsibility in relation to the children (or either child), the father shall notify the mother via email within 48 hours of such decision being made.
The mother is at liberty to consult with any treating practitioner involved with the children (or either of them) and any educational institution at which the children (or either of them) are currently enrolled, with any such communication to occur not more than once per fortnight NOTING THAT nothing in this order requires any of the professionals involved with the children to act upon any information or instructions given by the mother.

The Child X

During school term time X live with each parent on a week about basis, with changeover to occur at the conclusion of school each Wednesday, or 3.00pm if not a school day.
X spend time with the father from 10.00am to 5.00pm on Father’s Day.
Subject to X’s views, X live with the mother during special occasions and holidays as follows:
(a)       from 10.00am to 5.00pm on Mother’s Day;
(b)       for one half of each school term holiday at times to be agreed and, in default of agreement for the first half;
(c)       during the long summer holiday period in 2019 from 2.00 pm on 26 December 2019 until 2.00pm on the middle day between 1 January and the last day of the long summer holiday.
(d)       at any times agreed between the parties in writing.
Subject to paragraph 7, and X’s views, X live with the father at all other times.

The Child Y

Y live with the father.

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 McMurphy and McMurphy

Details

AGLC: McMurphy and McMurphy [2019] FamCA 947
Case: [2019] FamCA 947
Decision Date: 11 December 2019

CaseChat Overview and Summary

This matter concerned parenting orders sought by the father and mother in relation to their two children, X and Y. The court was required to determine the appropriate parenting arrangements for the children, including issues of parental responsibility, living arrangements, and time spent with each parent.

The primary legal issues before the court were the allocation of parental responsibility, the specific living arrangements for each child, and the schedule for time spent between the children and each parent. The court also had to consider provisions for communication between parents and children, as well as practical arrangements concerning schooling, medical care, and medication.

Williams J ordered that all previous parenting orders be discharged. The father was granted sole parental responsibility for both children, with a requirement to notify the mother via email within 48 hours of making any major long-term decision. The mother was granted liberty to consult with the children's treating practitioners and educational institutions, though professionals were not required to act on her communications. Specific living arrangements and time schedules were detailed for both X and Y, with provisions for holidays, special occasions, and communication. The court also made orders regarding the facilitation of communication, attendance at school events, medical care, medication storage, and a prohibition against denigrating the other parent in the presence of the children. The appointment of the Independent Children's Lawyer was discharged, subject to appeal.

Orders

Orders of the court

All previous parenting orders be discharged.

Parental Responsibility

The father have sole parental responsibility for the children X born … 2002 and Y born … 2004.

In the event the father makes any major long-term decision which involves exercising parental responsibility in relation to the children (or either child), the father shall notify the mother via email within 48 hours of such decision being made.

The mother is at liberty to consult with any treating practitioner involved with the children (or either of them) and any educational institution at which the children (or either of them) are currently enrolled, with any such communication to occur not more than once per fortnight NOTING THAT nothing in this order requires any of the professionals involved with the children to act upon any information or instructions given by the mother.

The Child X

During school term time X live with each parent on a week about basis, with changeover to occur at the conclusion of school each Wednesday, or 3.00pm if not a school day.

X spend time with the father from 10.00am to 5.00pm on Father’s Day.

Subject to X’s views, X live with the mother during special occasions and holidays as follows:

(a) from 10.00am to 5.00pm on Mother’s Day;

(b) for one half of each school term holiday at times to be agreed and, in default of agreement for the first half;

(c) during the long summer holiday period in 2019 from 2.00 pm on 26 December 2019 until 2.00pm on the middle day between 1 January and the last day of the long summer holiday.

(d) at any times agreed between the parties in writing.

Subject to paragraph 7, and X’s views, X live with the father at all other times.

The Child Y

Y live with the father.

10.

Y spend time and communicate with the mother as follows:

(a) each alternate week, on a fortnightly cycle from the conclusion of school on Wednesday ( or 3.30pm if a non-school day) to the commencement of school on the Monday ( or 9.30am if not a school day ), or Tuesday if Monday is a public holiday or curriculum day;

(b) each alternate Wednesday evening from the conclusion of school until 8.00pm.

(d) for one half of each school term holiday at times to be agreed and, in default of agreement for the first half;

(e) during each long summer holiday period :

(i) commencing in 2019, and each alternate year thereafter, from 2.00pm on 26 December until 2.00pm on the middle day between one January and the last day of the long summer holiday.;

(ii) Commencing in 2020 and each alternative year thereafter:

1. from the commencement of the long summer holiday period until 2.00pm on 26 December; and

2. from 2.00pm on 1 January until 2.00pm on the middle day between 1 January and the last day of the long summer holiday period;

(f) at any times agreed between the parties in writing.

11.

That the Mother’s time with X and Y be suspended from 10.00am to 5.00pm on Father’s day.

12.

All changeovers at the commencement or conclusion of school occur at school, and all other changeovers occur at the mother’s residence.

13.

Each parent shall facilitate any reasonable request by Y to communicate with the other parent.

14.

Each parent is at liberty to communicate with Y while he is in the other parent’s care by telephone at any time such communication is initiated by Y.

15.

That the parties be at liberty to contact the children via telephone between 7.00pm and 7.30pm on any Monday, Wednesday or Friday that the children are in the other party’s care.

16.

Both parents do all things necessary to enable Y to continue attending upon his treating psychiatrist, Dr CC.

17.

Both parents be permitted to attend all school events, functions, concerts and the like that parents are usually invited to attend.

18.

Both parents be at liberty to arrange and attend separate parent-teacher interviews for the children (or either of them).

19.

Each parent take the children to all appointments set to occur during their time with the children.

20.

The parties follow all care recommendations and administer all medications prescribed by the children’s treating medical practitioner according to the directions set out by that practitioner.

21.

The parties ensure that all prescription medication is kept in a locked storage unit.

22.

Each parent be restrained from denigrating, or making any critical or adverse comment about the other parent, or any member of the other parent’s family or friends, in writing or orally, to, or in the presence or hearing of the children, or either of them.

23.

The Independent Children’s Lawyer is permitted to provide a copy of these Orders to:

(a) Any current school or educational institution attended by the children or either of them;

(b) Dr CC.

24.

The father is permitted to provide a copy of these Orders to any educational institution attended by the children (or either of them) in the future.

25.

The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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