MEYER & SHIPTON (No.2) - [2013] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEYER & SHIPTON (No.2)

[2013] FCCA 2198

Catchwords:
FAMILY LAW – Final arrangements for parenting of child now aged five years and two months – child has lived in a shared care regime since age of sixteen months – father lives in (omitted) – mother lives in (omitted) – two locations separated by distance of approximately ninety kilometres – child has lived week about in (omitted) and (omitted) for approximately three years – child due to commence primary school at the start of 2014 school year – which primary school child attends will determine with whom of his parents child will predominantly from end of January 2014 onwards – both parties seek to be primary residence provider for child – consent order made by Local Court in November 2010 – orders provided for child to attend school in (omitted) – application of rule in Rice & Asplund – mother asserts father coerced and controlled her during parties’ marriage and afterwards – nature of family violence – relevance of views of child given age and lack of maturity – insights into the responsibilities of being a parent – both parents well motivated and capable – any difference in their respective parenting capacity marginal – necessity to closely consider applicable section 60CC factors – whatever is outcome child will spend substantial and significant time with other parent – best interests.

Legislation:

Family Law Act 1975, ss.4, 60CC, 61DA, 65DAA

Rice & Asplund (1979) FLC 90-725
C D J v V A J (1998) FLC92-828
Meyer & Shipton [2013] FCCA 307
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461

Applicant:

MS MEYER

Respondent:

MR SHIPTON

File Number:

CAC 90 of 2013

Judgment of:

Judge Brown

Hearing dates:

13, 14 & 15 November 2013

Date of Last Submission:

15 November 2013

Delivered at:

Adelaide

Delivered on:

19 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Elringtons

Counsel for the Respondent:

Mr Gill

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

ORDERS

Orders 8 to 15 of the orders entered into, by consent, at the Local Court at Wagga Wagga on 16 November 2010 be discharged.
The mother and father have equal shared parental responsibility for the child of the marriage X born (omitted) 2008 (hereinafter referred to as “X”).
X live with the father.
X spend time with the mother at such times as may be agreed between the parties and failing agreement as follows:
(a)During New South Wales school terms from 4:30pm Friday until 8:30am the following Monday, (or 8.30am the following Tuesday in the event of a public holiday) on each alternate weekend;
(b)From the start of term 2 in 2014 during school terms, in the other week of each fortnight, from 4:30pm on Wednesday until 8:30am the following Thursday;
(c)For one half of each school holiday period, the halves to be agreed…

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 MEYER & SHIPTON (No.2)

Details

AGLC: Meyer and Shipton (No.2) [2013] FCCA 2198
Case: [2013] FCCA 2198
Decision Date: 19 December 2013

CaseChat Overview and Summary

This case concerned the final arrangements for the parenting of a child, X, who was then five years and two months old. The child had lived in a shared care arrangement since he was sixteen months old, with his parents residing approximately ninety kilometres apart. Both parents sought to be the primary residence provider for X, whose schooling was due to commence in 2014, a decision that would significantly impact his living arrangements. The matter came before Brown J in the Family Court of Australia.

The court was required to determine the best interests of the child, X, in light of the proposed schooling arrangements and the parents' competing claims for primary residence. Key legal issues included the application of the rule in *Rice v Asplund*, the relevance of alleged family violence and coercion by the father, the weight to be given to the views of a child of X's age and maturity, and the comparative parenting capacities of both parents, who were described as well-motivated and capable with only marginal differences in their parenting abilities. The court also had to consider the various factors outlined in section 60CC of the *Family Law Act 1975* (Cth).

Brown J reasoned that while both parents were capable and motivated, the decision regarding X's schooling was pivotal. The court noted the mother's assertions of coercion and control by the father during their relationship, but found that any difference in their parenting capacity was marginal. The court applied the principles of best interests of the child, considering the substantial and significant time X would spend with each parent regardless of the outcome. The court ultimately made orders for equal shared parental responsibility, with X to live with the father, and detailed arrangements for X to spend time with the mother, including during school terms, school holidays, and specific public holidays. The father was authorised to enrol X at a primary school in his locality, and specific provisions were made for the exchange of the child, communication between parents and child, and the sharing of information regarding X's health and schooling.

Orders

Orders of the court

Orders 8 to 15 of the orders entered into, by consent, at the Local Court at Wagga Wagga on 16 November 2010 be discharged.

The mother and father have equal shared parental responsibility for the child of the marriage X born (omitted) 2008 (hereinafter referred to as “X”).

X live with the father.

X spend time with the mother at such times as may be agreed between the parties and failing agreement as follows:

(a) During New South Wales school terms from 4:30pm Friday until 8:30am the following Monday, (or 8.30am the following Tuesday in the event of a public holiday) on each alternate weekend;

(b) From the start of term 2 in 2014 during school terms, in the other week of each fortnight, from 4:30pm on Wednesday until 8:30am the following Thursday;

(c) For one half of each school holiday period, the halves to be agreed between the parties and failing agreement to be with the mother in the first half of all school holiday periods commencing 2014 and each even year thereafter and the second half in the year commencing 2015 and each odd year thereafter, subject to the following arrangements in respect of Christmas;

(d) From 5:00pm on Christmas Eve until 3:00pm Christmas Day in the year commencing 2013 and each odd ending year thereafter;

(e) From 3:00pm on Christmas Day until 5:00pm Boxing Day in the year commencing 2014 and each even year thereafter;

(f) Each alternate Easter in the years ending in an odd number;

(g) Each Mother’s Day weekend from 4:00pm Friday until 8:30am the following Monday.

In the event that X’s time with his mother falls on the weekend of Father’s Day, the mother’s time with the child will be suspended for Father’s Day weekend only an in lieu thereof she will spend time with the child on the preceding weekend.

The father be authorised by this order to enrol the child at (omitted) Primary School for his primary education commencing in term one of 2014.

Wherever possible the child is to be exchanged between the parties, to give effect to order 4 hereof, at his school in (omitted), unless the parties agree on some other location and in default of agreement and when the school is not available the child is to be exchanged at (omitted).

Each of the parties take all reasonable steps to ensure that X regularly communicates with the other parent, such communication to include email, telephone, and visual internet contact (for example, Skype) and each party is responsible for the cost of purchasing, installing and maintaining the required telephonic, computer and internet access and equipment at their respective homes and other places to facilitate such communication.

Both parents be permitted to liaise directly with the child’s school and sporting bodies and receive any notices, information, newsletters, school reports, order forms for the child’s photographs, information about X’s progress at school, parent/teacher appointments and information about extracurricular activities involving X.

10.

Each parent is at liberty to attend the child’s school for the purpose of any function to which parents are normally invited to attend.

11.

Each party keep the other informed of changes to X’s health while X is in their care and as soon as practicable notify the other parent of any medical emergency involving X and keep the other parent informed of all medical treatment prescribed for X.

12.

All applications herein be otherwise dismissed.

Background

Background to the litigation

These matters, delineated, I hope with care, are emblematic of the central issue arising in the case – will X be better off living in (omitted), with Ms Meyer, because she is quantifiably the superior parent, or is X going to be better off in (omitted), living mainly with Mr Shipton, because it is his innate preference and where he feels he belongs, as a consequence of the nature of this relationship with his father and others, who live in (omitted). a)General background Ms Meyer was born on (omitted) 1982. Mr Shipton was born on (omitted) 1976. They each currently enjoy good health. Neither has any other children, apart from X. They met in 2002, in (omitted), and began to live together in 2004, initially occupying premises owned by the father’s parents. Ms Meyer began her (course omitted) qualifications in 2005. She began to work as a (omitted), in 2007, working six to seven shifts, per fortnight, in (omitted). The parties moved into their former family home, at Property A, in 2008. Mr Shipton had purchased a vacant block of land, at Property A, in the early days of the parties’ relationship. The parties elected to build their home on the block and it was transferred into their joint names. They seem to have been under some financial pressure, at the time, which continued up until and after they separated. Once Ms Meyer fell pregnant with X, she obtained a secondment at the (omitted) in (omitted) between May 2008 and shortly prior to X’s birth, in October 2008. Thereafter she took six months maternity leave. Mr Shipton took six weeks paternity leave, after X’s birth. In early April 2009, Ms Meyer returned to work at the (employer omitted). In May of that year she began a full-time three month secondment at the (employer omitted). Mr Shipton took ten weeks leave, from about the time X was six months of age, to provide care for him. There is no dispute that Mr Shipton has been integrally involved with parenting X, in a significant way, since his early infancy. As both of his parents were engaged in the paid workforce, X began to attend day care, when he was still a baby. Ms M worked other jobs, in addition to her employment with (employer omitted). She worked at a (omitted); (omitted); and was a (omitted). Mr Shipton did private jobs, (omitted). Money was tight. There were many sources of tension in the parties' relationship, apart from the obvious ones arising from financial pressures and the need to balance work responsibilities with caring for a young child. The mother complains that the father controlled her need to exercise. The father felt excluded from the mother’s career as a (occupation omitted). The issue of the mother working outside of (omitted) was a source of friction. The parties agree that they argued frequently. Often Ms Meyer had to get up early to go to work in (omitted). In those circumstances, Mr Shipton got X up and took him to child care before starting his own work. He would also collect X from child care, in the afternoons, when Ms Meyer was working. Her shifts were long, when she was working – up to twelve hours in length with travelling on top.

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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