MORTON & MORTON - [2014] FamCA 672

FAMILY COURT OF AUSTRALIA

MORTON & MORTON

[2014] FamCA 672

FAMILY LAW – PARENTING – Consideration of whether the father should spend equal time or substantial and significant time with the children during school term – Where the Family Consultant recommends the children continue to live with the mother and spend time with the father five nights in a fortnight (the current arrangements) – Where an order for equal shared parental responsibility is to be made by consent - Where ss 65DAA(1), (2) and (5) of the Family Law Act 1975 (Cth) are triggered – The interpretation of the word “consider” as it is used in ss 65DAA(1) and (2) - Where the decision is finely balanced – Where it is possible pursuant to ss 65DAA(1)(a) and ss 65DAA(2)(c) for there to be more than one correct answer to the question of what would be in the best interests of the children – Where both parties’ proposals are in the children’s best interests – Where the mother asserts the parties have had difficulty communicating – Where it is found that the parties have been able to communicate for the purposes of implementing their current shared care arrangements – Where the Family Consultant agreed there was no indicia contra-indicating the notion that an equal time arrangement was reasonable practicable – Where an order is made that the children first spend increased time with the father and for that time to increase to equal time by November 2015

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

CDJ & VAJ (1998) 197 CLR 172
E and S [2010] FCWA 3
Goode & Goode (2006) FLC 93-286
Korban & Korban [2009] FamCAFC 143
MRR & GR (2010) 240 CLR 461

Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Morton

RESPONDENT:

Ms Morton

FILE NUMBER:

SYC

2013

DATE DELIVERED:

21 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 - 13 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Ms Gillies

SOLICITOR FOR THE RESPONDENT:

Diana Perla & Associates

Orders

Save for order 3.1, orders be made by consent in accordance with Exhibit 2.
That in lieu of order 3.1 in Exhibit 2, the following order be inserted:
3.1 Each alternate week from after school on:
From the date of these orders until 13 November 2015
3.1.1Tuesday (or 3pm if a non-school day) until return to school on Monday morning (or 8.30am if a non-school day), with such time to commence on the first Tuesday following the making of these orders;
From 13 November 2015 onwards
3.1.2Monday (or 3pm if a non-school day) until return to school on the following Monday morning (or 8.30am if a non-school day), with such time to commence on the first Monday after 13 November 2015;

THE COURT NOTES THAT A SET OF ORDERS WILL BE ISSUED AS FOLLOWS:

IT IS NOTED THAT:

A.The following definitions…

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.

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Details

AGLC: MORTON & MORTON [2014] FamCA 672
Case: [2014] FamCA 672
Decision Date: 21 August 2014

CaseChat Overview and Summary

In the matter of *Morton & Morton*, Watts J of the Supreme Court of Queensland considered a dispute between the parties concerning parenting arrangements. The proceedings involved an application for consent orders, with a specific amendment proposed to an existing order regarding the time each parent would spend with the children.

The central legal issue before the Court was the precise formulation of the parenting orders, particularly concerning the commencement and duration of alternate week contact arrangements. The Court was required to determine the specific wording and timing of these orders to reflect the agreement reached by the parties, ensuring clarity and enforceability.

Watts J's reasoning focused on giving effect to the parties' consent, as evidenced in Exhibit 2, while also incorporating the agreed amendment to order 3.1. The Court applied the principle that where parties consent to orders, the Court will generally make those orders unless they are contrary to the children's best interests or otherwise improper. The Court's decision involved carefully detailing the alternate week arrangements, specifying the commencement dates and the exact periods of time each parent would have the children, distinguishing between periods before and after 13 November 2015.

The Court made orders by consent, save for a specific amendment to order 3.1. This amendment stipulated that each alternate week, the children would spend time with one parent from after school on a Tuesday until the following Monday morning, commencing on the first Tuesday after the orders were made. From 13 November 2015, this arrangement was to shift to commence on a Monday until the following Monday morning, beginning on the first Monday after that date.

Orders

Orders of the court

Save for order 3.1, orders be made by consent in accordance with Exhibit 2.

That in lieu of order 3.1 in Exhibit 2, the following order be inserted:

3.1 Each alternate week from after school on:

From the date of these orders until 13 November 2015

3.1.1 Tuesday (or 3pm if a non-school day) until return to school on Monday morning (or 8.30am if a non-school day), with such time to commence on the first Tuesday following the making of these orders;

From 13 November 2015 onwards

3.1.2 Monday (or 3pm if a non-school day) until return to school on the following Monday morning (or 8.30am if a non-school day), with such time to commence on the first Monday after 13 November 2015;

THE COURT NOTES THAT A SET OF ORDERS WILL BE ISSUED AS FOLLOWS:

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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