McShane and Tanner (No.2) - [2011] FMCAfam 508

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCSHANE & TANNER (No.2)

[2011] FMCAfam 508

FAMILY LAW – Child – parenting responsibility – father’s time with child.

Family Law Act 1975, ss.4, 60B, 60B(2), 60CA, 61C, 60CC
Evidence Act 1995, s.128

McCall v Clark [2009] FLC 93-405
Mazorski v Albright (2007) 37 FLR 518

Applicant:

MR MCSHANE

Respondent:

MS TANNER

File Number:

ADC 4912 of 2009

Judgment of:

Cole FM

Hearing dates:

25 & 28 June, 16, 17, 18 & 19 August,
5 October, 24 November, 21 December 2010 and 22 February 2011

Date of Last Submission:

22 February 2011

Delivered at:

Adelaide

Delivered on:

1 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Horvat

Solicitors for the Applicant:

Pederick Lawyers

Counsel for the Respondent:

Mr Lewis

Solicitors for the Respondent:

David Walker & Co.

Counsel for the Independent Children’s Lawyer:

Ms Tinning

Solicitors for the Independent Children’s Lawyer:

Barr Lawyers

ORDERS

That the child [X] born [in] 2009 (“[X]”) live with the mother.
Save as set out in these orders that mother have the sole parental responsibility for the child’s education and medical treatment.
That the mother be restrained and an injunction is hereby granted restraining her from causing [X] to be exposed to the teachings or doctrine of the Jehovah’s Witnesses save and except with the express written consent of the father.
That the mother be restrained and an injunction is hereby granted restraining her from refusing blood transfusions for [X] in the event of advice from [X]’s treating medical practitioners that there is no other option to preserve her life or protect her from serious injury or damage to her health.
That the mother shall keep the father informed at all times of any serious or significant illness or accident involving the child and shall authorise any of [X]’s treating medical or health practitioners to provide information to the father regarding medical conditions and treatment concerning the child.
That the mother shall authorise any kindergarten or school at which [X] may attend from time to time to provide information to the father regarding the child’s attendance and progress thereat and such other information including, but not limited to, school reports, parent newsletters and notices and invitations to kindergarten and school functions and events.
That both parties be at liberty to attend any kindergarten or school events and functions to which parents are ordinarily entitled to attend including, but not limited to, school concerts, sports days, excursions and the like.
That the mother do forthwith take all reasonable steps to ensure that [X] sleeps overnight in her own bed and not the mother’s bed.
That the father spend time with [X]:
(a)until such time as the child commences school on a full-time basis:
(i)each alternate weekend from 5.30pm on Friday until 6.30pm on Sunday;
(ii)from 5.30pm on Thursday until 5.30pm on Friday in each intervening week provided that the father is not working on the Friday and provides the mother with seven days notice of his intention to exercise…

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 McShane and Tanner (No.2)

Details

AGLC: McShane and Tanner (No.2) [2011] FMCAfam 508
Case: [2011] FMCAfam 508
Decision Date: 1 June 2011

CaseChat Overview and Summary

McShane and Tanner (No.2) involved a dispute between the parents of a child, [X], born in 2009, regarding the child's upbringing and care. The court was asked to determine various aspects of the child's living arrangements, parental responsibilities, and exposure to certain religious teachings. The matter was heard in the Family Court of Australia.

The primary legal issues before the court were the allocation of parental responsibilities, including decision-making regarding the child's education and medical treatment, the child's exposure to religious teachings, and the specific visitation schedule for the father. The court also had to address the mother's residence relocation and the logistics of handovers between the parents. The court's reasoning involved a detailed assessment of the best interests of the child, considering factors such as the child's health, education, and emotional well-being. The court emphasised the importance of stability and the need to protect the child from potential harm, including exposure to religious doctrines that conflicted with the father's wishes.

The court ruled in favour of the mother, granting her primary care of the child with specific restrictions on the child's exposure to the Jehovah's Witnesses and mandatory blood transfusions in medical emergencies. The father was awarded visitation rights with a detailed schedule that increased as the child aged. Both parents were granted the right to attend school and other events involving the child. The court also imposed conditions on the mother's relocation and specified the handover process. The court's decision aimed to balance the parents' rights with the paramount consideration of the child's welfare.

The court's final orders included provisions for the child to live primarily with the mother, with detailed arrangements for the father's visitation, communication, and participation in the child's life. The orders also included restrictions on the mother's relocation and her exposure to certain religious teachings, as well as requirements for information sharing and participation in a parenting program. These orders were designed to ensure the child's safety and well-being while allowing both parents to maintain a meaningful relationship with [X].

Orders

Orders of the court

That the child [X] born [in] 2009 (“[X]”) live with the mother.

Save as set out in these orders that mother have the sole parental responsibility for the child’s education and medical treatment.

That the mother be restrained and an injunction is hereby granted restraining her from causing [X] to be exposed to the teachings or doctrine of the Jehovah’s Witnesses save and except with the express written consent of the father.

That the mother be restrained and an injunction is hereby granted restraining her from refusing blood transfusions for [X] in the event of advice from [X]’s treating medical practitioners that there is no other option to preserve her life or protect her from serious injury or damage to her health.

That the mother shall keep the father informed at all times of any serious or significant illness or accident involving the child and shall authorise any of [X]’s treating medical or health practitioners to provide information to the father regarding medical conditions and treatment concerning the child.

That the mother shall authorise any kindergarten or school at which [X] may attend from time to time to provide information to the father regarding the child’s attendance and progress thereat and such other information including, but not limited to, school reports, parent newsletters and notices and invitations to kindergarten and school functions and events.

That both parties be at liberty to attend any kindergarten or school events and functions to which parents are ordinarily entitled to attend including, but not limited to, school concerts, sports days, excursions and the like.

That the mother do forthwith take all reasonable steps to ensure that [X] sleeps overnight in her own bed and not the mother’s bed.

That the father spend time with [X]:

(a) until such time as the child commences school on a full-time basis:

(i) each alternate weekend from 5.30pm on Friday until 6.30pm on Sunday;

(ii) from 5.30pm on Thursday until 5.30pm on Friday in each intervening week provided that the father is not working on the Friday and provides the mother with seven days notice of his intention to exercise such time

(b) upon the child commencing school:

(i) during school terms:

(1) each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;

(2) in each intervening week from 5.30pm on Thursday until the commencement of school on Friday with the father to deliver [X] to school

(ii) for one half of each of the short school holidays;

(iii) for one half of the Christmas school holidays in 2014/15 and 2015/16 on a week about basis;

(iv) for one half of the Christmas school holidays from 2016/17:

(1) for the first half in 2016/17 and in each alternate year;

(2) for the second half in 2017/18 and in each alternate year

10.

That the father notify the mother forthwith in the event that the father cannot be present in Tasmania due to employment commitments and is unable to spend time with [X] pursuant to these orders.

11.

That notwithstanding any order to the contrary, [X] shall spend time with the parties on the following occasions:

(a) with the mother on Mother’s Day from 9.00am until 5.00pm;

(b) with the father on Father’s Day from 9.00am until 5.00pm;

(i) with the mother:

(1) from 12.00 noon on 24 December 2011 until 12 noon on 25 December 2011 and between the same times in each alternate year thereafter;

(2) from 12 noon on 25 December 2012 until 12.00 noon on 26 December 2012 and between the same times in each alternate year thereafter

(ii) with the father:

(1) from 12 noon on 25 December 2011 until 12.00 noon on 26 December 2011 and between the same times in each alternate year thereafter;

(2) from 12.00 noon on 24 December 2012 until 12 noon on 25 December 2012 and between the same times in each alternate year thereafter

(d) on the Easter long weekend each year:

(i) with the mother:

(1) from 5.00pm on Easter Saturday until 5.00pm on Easter Monday in 2012 and between the same times in each alternate year thereafter

(2) from 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday in 2013 and between the same times in each alternate year thereafter;

(ii) with the father:

(1) from 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday in 2012 and between the same times in each alternate year thereafter

(2) from 5.00pm on Easter Saturday until 5.00pm on Easter Monday in 2013 and between the same times in each alternate year thereafter;

(e) on the child’s birthday on [date omitted] each year, [X] shall spend a period of not less than three hours with the parent who does not otherwise have the child in their care on that day.

12.

That the father be at liberty to communicate with the child by telephone on two occasions each week at times to be agreed between the parties.

13.

That the mother be at liberty to communicate with the child by telephone on two occasions each week during school holiday periods when the child is in the father’s care at times to be agreed between the parties.

14.

That the mother shall be restrained and an injunction is hereby granted restraining her from changing the child’s principal place of residence to a distance greater than 50 kilometres from Burnie, Tasmania, without providing the father with sixty days prior written notice of her intention to do so.

15.

That handovers shall occur at the mother’s home at the commencement of the father’s time with [X] with the father to collect the child and at the father’s home at the conclusion of the father’s time with the mother to collect the child, save and except that handovers shall occur at the child’s school upon the child reaching school age and where the handover time coincides with the commencement or conclusion of school.

16.

That the parties attend upon a Family Advisor at the nearest Family Relationship Centre for the purpose of assessment and referral to an appropriate agency in relation to a parenting orders program.

17.

That all Applications be otherwise dismissed.

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.