Mead and Mead - [2007] FMCAfam 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEAD & MEAD

[2007] FMCAfam 875

FAMILY LAW – Parenting – best interests of the child – capacity and willingness to facilitate relationship with the child.

Family Law Act 1975, Part VII, ss.60B (1) and (2), 60CA, 60CC (1), (2), (2)(b), (3), (3)(a), (3)(c), (3)(d) – (h), (3)(j), (4) and (4A), 60CD, 65DAA

Australian Journal of Family Law

Dylan & Dylan [2007] FamCA 842
Goode v Goode (2007) 37 Fam LR 422

Applicant:

MR MEAD

Respondent:

MS MEAD

File Number:

CAM 918 of 2006

Judgment of:

Neville FM

Hearing dates:

18 & 19 October 2007

Date of Last Submission:

19 October 2007

Delivered at:

Canberra

Delivered on:

21 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski, SC

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Ms Nash

Solicitors for the Respondent:

Campbell & Co

ORDERS

Both parents will have equal shared parental responsibility for the child, R born in 2000.
For a period of six months from the date of these Orders, R’s day-to-day care arrangements shall be as follows:-
(a)R will live with Mr Mead.
(b)R will spend time and communicate with Ms Mead as follows:-
(i)Each alternate weekend from after school on Friday until before school on Monday;
(ii)In the week following Ms Mead’s weekend with the child, from after school Thursday until before school Friday;
(iii)By telephone at any reasonable time;
(iv)Or as otherwise agreed between the parties.
(c)R will live with each of his parents during each school holiday period on a week about basis, as agreed between the parties, but failing agreement, to commence with Ms Mead to collect R after school on the Friday of the last week of each school term.
Commencing six months after the date of these Orders:-
(a)R will live with each of his parents on a week about basis, with changeover to occur as agreed between the parties, but failing agreement, after school each Friday.
(b)During school terms, R will spend time with the parent with whom he is not otherwise living from after school on Wednesday until before school on Thursday, or as otherwise agreed between the parties.
(c)R will live with each of his parents for half of each school holiday period, as agreed between the parties, or failing agreement, with Ms Mead for the first half of the holidays in even numbered years, and the second half of the holidays in odd numbered years.
(d)Either parent may telephone R when he is living with the other parent at any reasonable time, and must facilitate a telephone call to the other parent when R expresses a wish to do so at any reasonable time.
The parent with whom R is not otherwise living on his birthday and that parent’s birthday is entitled to spend time with R as agreed or failing agreement, as follows:
(a)If R's birthday falls on a school day, for three hours, commencing at the conclusion of school; or
(b)If R's birthday falls…

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 Mead and Mead

Details

AGLC: Mead and Mead [2007] FMCAfam 875
Case: [2007] FMCAfam 875
Decision Date: 21 December 2007

CaseChat Overview and Summary

In the case of Mead and Mead, the dispute was centred around the care arrangements for the child R, born in 2000. The matter was heard in the Family Court of Australia. The primary concern was the establishment of a parenting order that would provide for the child's best interests in terms of shared parental responsibility and living arrangements.

The legal issues that the court needed to address involved determining the allocation of shared parental responsibility between the parents, as well as creating a detailed schedule for the child’s day-to-day care and communication between the child and the non-resident parent. The court was also tasked with setting specific time arrangements for the child’s special occasions and holidays, ensuring that both parents could participate in the child's life meaningfully.

The court considered the evidence presented by both parties and the child's needs, leading to the conclusion that equal shared parental responsibility was in the child’s best interests. The detailed parenting order provided a structured schedule that balanced the time spent with each parent, allowing for flexibility and adaptation as the child grows. The order also included provisions to protect the child from exposure to parental conflict and to ensure that both parents remain involved in the child's health and well-being. The court emphasised the importance of communication and cooperation between the parents for the sake of the child.

The final orders mandated that both parents would have equal shared parental responsibility and established a phased schedule for the child’s living arrangements and contact times, with provisions for special occasions and emergencies. The orders also included directives to prevent the child from being exposed to parental conflict or physical discipline and required both parents to cooperate in the child's health and educational needs.

Orders

Orders of the court

Both parents will have equal shared parental responsibility for the child, R born in 2000.

For a period of six months from the date of these Orders, R’s day-to-day care arrangements shall be as follows:-

(a) R will live with Mr Mead.

(b) R will spend time and communicate with Ms Mead as follows:-

(i) Each alternate weekend from after school on Friday until before school on Monday;

(ii) In the week following Ms Mead’s weekend with the child, from after school Thursday until before school Friday;

(iii) By telephone at any reasonable time;

(iv) Or as otherwise agreed between the parties.

(c) R will live with each of his parents during each school holiday period on a week about basis, as agreed between the parties, but failing agreement, to commence with Ms Mead to collect R after school on the Friday of the last week of each school term.

Commencing six months after the date of these Orders:-

(a) R will live with each of his parents on a week about basis, with changeover to occur as agreed between the parties, but failing agreement, after school each Friday.

(b) During school terms, R will spend time with the parent with whom he is not otherwise living from after school on Wednesday until before school on Thursday, or as otherwise agreed between the parties.

(c) R will live with each of his parents for half of each school holiday period, as agreed between the parties, or failing agreement, with Ms Mead for the first half of the holidays in even numbered years, and the second half of the holidays in odd numbered years.

(d) Either parent may telephone R when he is living with the other parent at any reasonable time, and must facilitate a telephone call to the other parent when R expresses a wish to do so at any reasonable time.

The parent with whom R is not otherwise living on his birthday and that parent’s birthday is entitled to spend time with R as agreed or failing agreement, as follows:

(a) If R's birthday falls on a school day, for three hours, commencing at the conclusion of school; or

(b) If R's birthday falls on a weekend, for five hours.

Notwithstanding these Orders, R will spend from 10:00am to 5:00pm with Mr Mead on Father’s Day, and from 10:00am to 5:00pm with Ms Mead on Mother’s Day.

The parent with whom R is not otherwise living on Easter Sunday is entitled to spend time with R that day for at least five hours, unless otherwise agreed.

The parent with whom R is not otherwise living on Christmas Day will spend time with R as agreed between the parties, but failing agreement, from 3pm on Christmas Day until 3pm on Boxing Day.

In the event that either parent is unable to care for R, he or she will give the other parent the first option for caring for R during the period of time they are unavailable.

Neither parent shall discuss these proceedings, nor denigrate the other parent, to or in front of the child, nor cause or allow anybody else to do so.

10.

Neither parent shall physically discipline R, nor cause anybody else to do so.

11.

Each parent will notify the other parent of any medical issues, illnesses, appointments and/or emergencies relating to R while he is in the other parent’s care, as soon as is reasonably practicable.

12.

Neither parent will take R to see a counsellor, psychologist or like professional without the written permission of the other parent.

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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