Mercer and Mercer

Case [2018] FCCA 2575


FEDERAL CIRCUIT COURT OF AUSTRALIA

MERCER & MERCER [2018] FCCA 2575
Catchwords:
FAMILY LAW – Parenting – dispute over where youngest child should live – poor parenting decisions – facebook and text messages – exposure to conflict – attitude to relationship with other parent – sibling relationship – strength of relationship with each parent – evidence of report writer – position of Independent Children’s Lawyer – children’s best interests.

Legislation:

Family Law Act 1975

Telecommunications (Interception and Access) Act 1979 (Cth)
Evidence Act 1995 (Cth)

Cases cited:
Lackey & Mae [2013] FMCAfam 284
Hall & Hall (1979) FLC 90-713
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Baghti & Baghti and Ors [2015] FamCAFC 71
Penski v Kocher [2013] FamCA 255
Pruchnik & Pruchnik (No.2) [2018] FamCA 226
Chappell & Chappell [2008] FamCAFC 143
Newlands & Newlands [2007] FamCA 168
Doherty & Doherty [2016] FamCAFC 182
Applicant: MR MERCER
Respondent: MS MERCER
File Number: DGC 1359 of 2017
Judgment of: Judge O'Sullivan
Hearing dates: 9, 10 April & 18, 19, 20 July 2018
Date of Last Submission: 31 July 2018
Delivered at: Dandenong
Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Mr O'Shannessy
Solicitors for the Applicant: Berger Kordos Lawyers
Counsel for the Respondent: Ms Elleray
Solicitors for the Respondent: Julie Taylor
Counsel for the Independent Children’s Lawyer: Mr Taghdir
Solicitor for the Independent Children's Lawyer: Taft Lawyers

ORDERS

THE COURT ORDERS THAT:

  1. The mother shall have sole parental responsibility for the child, [X] born 2009 (“[X]”) in relation to major long term issues about:

    (a)education (both current and future);

    (b)religious and cultural upbringing;

    (c)health;

    on the conditions that:

    (i)the mother will contact the father in writing and provide her views about any such issue;

    (ii)the mother shall consult with the father with regard to any such issue;

    (iii)the mother and father will make a genuine effort to come to a joint decision about any such issue;

    (iv)if no agreement is reached between the mother and father, then within 14 days the mother shall make the final decision and advise the father in writing (email or text message) of the decision about any such issue.

  2. The father shall have sole parental responsibility for the child, [Y] born 2005 (“[Y]”) in relation to major long term issues about:

    (a)education (both current and future);

    (b)religious and cultural upbringing;

    (c)health;

    on the conditions that:

    (i)the father will contact the mother in writing and provide her views about any such issue;

    (ii)the father shall consult with the mother with regard to any such issue;

    (iii)the father and mother will make a genuine effort to come to a joint decision about any such issue;

    (iv)if no agreement is reached between the father and mother, then within 14 days the father shall make the final decision and advise the mother in writing (email or text message) of the decision about any such issue.

  3. The mother and the father shall have equal shared parental responsibility for the children [Y] born…

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AGLC
Mercer and Mercer [2018] FCCA 2575
Case
[2018] FCCA 2575
Decision Date

CaseChat Overview and Summary

This matter concerned orders made by Judge O'Sullivan regarding parental responsibility and time spent with two children, [X] born in 2009 and [Y] born in 2005. The dispute centred on how major long-term issues concerning the children's education, religious and cultural upbringing, and health, as well as their names and living arrangements, should be managed, and the specific arrangements for the children to spend time with each parent.

The court was required to determine the extent of sole and equal shared parental responsibility for various aspects of the children's lives. Specifically, it needed to decide which parent would have sole responsibility for decisions regarding education, religious and cultural upbringing, and health for each child, and under what conditions. Furthermore, the court had to establish shared parental responsibility for decisions concerning the children's names and significant changes to their living arrangements. The court also had to delineate the specific times each child would spend with each parent, including during school terms, holidays, birthdays, and other significant dates, and address the practicalities of changeovers and communication between the parents.

The court ordered that the mother would have sole parental responsibility for [X] concerning education, religious and cultural upbringing, and health, subject to consultation and genuine effort to reach joint decisions with the father, with the mother making the final decision if agreement was not reached. Similarly, the father was granted sole parental responsibility for [Y] in relation to these matters, with the same conditions for consultation and final decision-making. Both parents were to have equal shared parental responsibility for the children's names and changes to living arrangements that would make it significantly more difficult for the children to spend time with the other parent. The orders then detailed specific living arrangements, with [X] to live with the mother and [Y] to live with the father, followed by extensive provisions outlining the time each child would spend with the non-resident parent, including detailed schedules for weekends, Thursdays, birthdays, Christmas, and school holidays. The court also made orders regarding communication about the children's health and welfare, and imposed injunctions restraining the parents from denigrating each other or the children, discussing proceedings in the children's presence, or exposing the children to violence.

Orders

Orders of the court

THE COURT ORDERS THAT:

1.

The mother shall have sole parental responsibility for the child, [X] born 2009 (“[X]”) in relation to major long term issues about:

(a)education (both current and future);

(b) religious and cultural upbringing;

(c) health;

on the conditions that:

(i) the mother will contact the father in writing and provide her views about any such issue;

(ii) the mother shall consult with the father with regard to any such issue;

(iii) the mother and father will make a genuine effort to come to a joint decision about any such issue;

(iv) if no agreement is reached between the mother and father, then within 14 days the mother shall make the final decision and advise the father in writing (email or text message) of the decision about any such issue.

2.

The father shall have sole parental responsibility for the child, [Y] born 2005 (“[Y]”) in relation to major long term issues about:

(a)education (both current and future);

(b) religious and cultural upbringing;

(c) health;

on the conditions that:

(i) the father will contact the mother in writing and provide her views about any such issue;

(ii) the father shall consult with the mother with regard to any such issue;

(iii) the father and mother will make a genuine effort to come to a joint decision about any such issue;

(iv) if no agreement is reached between the father and mother, then within 14 days the father shall make the final decision and advise the mother in writing (email or text message) of the decision about any such issue.

3.

The mother and the father shall have equal shared parental responsibility for the children [Y] born 2005 (“[Y]”) and [X] born 2009 (“[X]”) (collectively “the children”) in relation to major long term issues about:

(a)the children’s name; and

(b) changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent.

4.

[X] live with the mother.

5.

[Y] live with the father.

6.

[X] spend time and communicate with the father, unless otherwise agreed, as follows:-

During school terms

(a) each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday or 5:00pm on Monday, if Monday is a public holiday;

(b) each Thursday from conclusion of school or 3:30 pm if a non-school day until 7:30 pm, on the basis that changeover when not at school, shall occur at the home of the paternal grandparents in Town A, with such time spent to be based in and around Town A;

(c) notwithstanding any period she is living with the mother:

(i) from 5:00pm on Father’s Day Eve until 5:00pm on Father’s Day;

(ii) on [Y]’s, the father’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement, from the conclusion of school or 3:30 pm if a non-school day, on the basis that changeover when not at school, shall occur at the home of the paternal grandparents in Town A;

(iii) on Christmas and Boxing Days:

a) commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;

b) commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;

(d) commencing from the third gazetted Victorian school term holiday in 2018 and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:

(i) the first half in even numbered years from 5:00pm of the last day of school term until 5:00pm on the day calculated to be halfway through the said holiday; and

(ii) the second half in odd numbered years from 5:00pm on the day calculated to be halfway through the said holiday until the 5:00pm on the day before the commencement of the next school term;

Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday.

(e) commencing from the gazetted Victorian summer school holiday in 2018 and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:

(i) the first half in even numbered years from 5:00pm on the last day in term 4 until 5:00pm on the day calculated to be halfway through the said holiday;

(ii) the second half in odd numbered years from 5:00pm on the day calculated to be halfway through the said holidays until 5:00pm on the day before the commencement of term 1 of school the next school year;

Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holidays.

7.

Save and except for the time [X] spends with the Father pursuant to order 6(c) herein, her time with the Father pursuant to these Orders, as may be applicable, be suspended as follows:

(a) from 5:00pm on Mother’s Day Eve until 5:00pm on Mother’s Day;

(b) on the Mother’s and her birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day;

(c) on Christmas and Boxing Days:

(i) commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;

(ii) commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December.

8.

The time [X] spends with the Father pursuant to orders 6(a) and 6(b) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened.

9.

[Y] spend time and communicate with the mother, unless otherwise agreed, as follows:-

During school terms

(a) each alternate weekend (i.e. when [X] lives with the mother) from 5:00pm on Friday until 5.00pm on Sunday or 5.00pm on Monday if Monday is a public holiday, and for such purpose the Mother and Father will meet at Location B at the commencement and conclusion of time spent;

(b) notwithstanding any period he is living with the father:

(i) from 5:00pm on Mother’s Day Eve until 5:00pm on Mother’s Day;

(ii) on [X]’s, the mother’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from 3:30pm, and for purposes of changeover the parties meet at the home of the paternal grandparents in Town A at the commencement and conclusion of time spent;

(iii) on Christmas and Boxing Days:

a) commencing in 2018 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December;

b) commencing in 2019 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;

(c) commencing from the third gazetted Victorian school term holiday in 2018 and each school term holiday thereafter for half of all said holidays as agreed between the parties in writing, and failing agreement:

(i) the second half in even numbered years from 5:00pm on the day calculated to be halfway through the said holiday until 5:00pm on the day before the commencement of the next school term;

(ii) the first half in odd numbered years from the conclusion of the last day of school term until 5:00pm on the day calculated to be halfway through the said holiday;

Note: the total number of nights during the term holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the term holiday.

(d) commencing from the gazetted Victorian summer school holiday in 2018 and each summer school holiday thereafter for half of such period as agreed between the parties in writing, and failing agreement:

(i) the second half in even numbered years from 5:00pm on the day calculated to be halfway through the said holidays until 5:00pm the day before the commencement of term 1 of school the next school year;

(ii) the first half in odd numbered years from the conclusion of school on the last day in term 4 until 5:00pm on the day calculated to be halfway through the said holiday;

Note: the total number of nights during the long summer holiday period shall be used to calculate one half of the holiday period. The total number of nights shall always include the night of the last day of school before the commencement of the long summer holiday.

10.

Save and except for the time [Y] spends with the Mother pursuant to order 9(b) herein, his time with the Mother pursuant to these Orders, as may be applicable, be suspended as follows:

(a) from 5:00pm on Father’s Day Eve until 5:00pm of Father’s Day;

(b) on the Father’s and his birthday for 3 hours as agreed between the parties in writing and failing agreement from the conclusion of school or 3:30 pm if a non-school day;

(c) on Christmas and Boxing Days:

(i) commencing in 2018 and each alternate year thereafter from 12:00pm on 24 December until 12:00pm 25 December;

(ii) commencing in 2019 and each alternate year thereafter from 12:00pm on 25 December until 12:00pm on 26 December.

11.

The time [Y] spends with the Mother pursuant to orders 9(a) herein shall be suspended during the school term and long summer school holiday periods and resume after each of the said holidays as if the holiday period had not intervened.

12.

Save and except as provided for in orders 6(b) (c) (ii) & 9(b) (ii) herein, for purposes of all other changeovers to facilitate the children spending time with each of the mother and the father pursuant to orders 6, 7, 9 & 10 herein the mother and father shall meet at Location B at the commencement and conclusion of time spent.

13.

The mother and father shall do all acts and things and sign all documents and authorities necessary to ensure that they each:

(a) have information and access to the children’s medical and dental records and any registered medical/health professional(s) upon whom any of the children may attend from time to time;

(b) receive from any school attended by the children, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by schools and the expenses, if any, of such items received shall be borne by the receiving parent;

(c) are entitled to attend upon the children’s school upon any invitation issued on behalf of their school or otherwise for the bona fide purpose of enquiry as to the children’s welfare, including educational progress;

(d) be named as an emergency contact at the children’s school/sporting events.

14.

The mother and father shall:

(a) inform each other by either telephone, text message or email of any serious illness or injury suffered or sustained by any of the children while in their care as soon as practicable following the onset of the said illness or occurrence of the said injury; and

(b) provide each other with the particulars of:

(i) any treatment required or received by any of the children; and

(ii) the name and address of any treating medical/health professional involved with any of the children; and

(c) ensure that any prescriptions or prescribed medications are provided for the children and accompany them at changeover as required.

15.

The mother and father be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the children or the other party to or in the presence or hearing of the children or any of them, and from permitting any other person from doing so;

(b) discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so; and

(c) exposing the children to any form of violence, threats or intimidation and from permitting any other person from doing so.

16.

All extant applications are otherwise dismissed.

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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