MOSES & DOWNING - [2009] FamCA 1270

FAMILY COURT OF AUSTRALIA

MOSES & DOWNING

[2009] FamCA 1270

FAMILY LAW – CHILDREN – BEST INTERESTS – Male child ten years – Child diagnosed with ADHD – Mother seeking equal shared parental responsibility and equal time order - Mother in the past has expressed belief that she and father cannot co-parent child because of entrenched conflict – Mother’s health difficulties – Child recently has lived with father and spent time with mother – Parental responsibility – Child’s best interests will be met by order that father have sole parental responsibility – Father to consult with mother before making decisions – Child’s living arrangements – Child’s best interests will be met by order that he live with father and spend time with mother

Family Law Act 1975 (Cth) s 60B, s 60CC, 61DA

Biss & Biss [2009] FamCA 1234
H & H (2003) FLC 93-168
Korban & Korban [2009] FamCAFC 143
McCall & Clark [2009] FamCAFC 92
MRR and GR [2009] HCATrans 316, 3 December 2009
T & N [2001] FMCA fam 222

APPLICANT:

Mr Moses

RESPONDENT:

Ms Downing

FILE NUMBER:

BRC

8043

2008

DATE DELIVERED:

23 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

21, 22, 23, 26 and 27 October 2009

REPRESENTATION:

SOLICITOR FOR THE APPLICANT:

Ms Awyzio
DA Family Lawyers

THE RESPONDENT:

Self represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Drysdale

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bell

Legal Aid Queensland

Orders

IT IS ORDERED

Parental responsibility

The father have sole parental responsibility for B born … December 1999 (the child) provided that in relation to the major long-term issues concerning him including his education both current and future, religious and cultural upbringing, health and changes to his living arrangements that may make it significantly more difficult for him to spend time with the parties or either of them he must consult with the mother in writing in the manner set out in paragraph 2.
The father, before making any decision in relation to the major long-term issues concerning the child, must:
(a)advise the mother in writing of the decision intended to be made;
(b)seek the mother’s written response in relation to it;
(c)consider, by reference to the child’s best interests, any response by the mother; and
(d)advise the mother in writing as soon as reasonably practicable of his decision.

Living arrangements

School terms

During school terms the child live with the father and spend time with the mother at all times as may be agreed in writing between the parties but failing agreement on alternate weekends from after school Friday (or Thursday if the Friday is a pupil free day or public holiday) until before school Monday (or Tuesday if the Monday is a pupil free day or public holiday), such weekends to coincide with the weekends when JG is spending time with the mother and her partner RG.

School holidays

For the balance of the 2009/2010 Christmas school holiday period, unless the parties…

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 MOSES & DOWNING

Details

AGLC: MOSES & DOWNING [2009] FamCA 1270
Case: [2009] FamCA 1270
Decision Date: 23 December 2009

CaseChat Overview and Summary

The case of Moses & Downing involved a dispute between the father and mother concerning parental responsibility and the living arrangements for their child, B. The matter came before O'Reilly J.

The court was required to determine the extent of parental responsibility to be afforded to each parent, particularly in relation to major long-term issues concerning the child. Additionally, the court needed to establish specific orders regarding the child's living arrangements during school terms and holidays, as well as arrangements for special days and communication between the parties.

O'Reilly J made orders that the father would have sole parental responsibility for the child, B. However, this was qualified by a requirement that the father must consult with the mother in writing regarding major long-term issues, including education, health, and significant changes to living arrangements. The court also detailed specific arrangements for the child to spend time with the mother during school terms and holidays, including provisions for special days such as birthdays and Christmas. Further orders addressed communication protocols between the parties, including the use of email and text messages, and the exchange of essential information. The court also included provisions regarding non-denigration, the prohibition of discussing adult issues with the child, and prohibitions on physical discipline and drink driving with the child.

Orders

Orders of the court

IT IS ORDERED

Parental responsibility

The father have sole parental responsibility for B born … December 1999 (the child) provided that in relation to the major long-term issues concerning him including his education both current and future, religious and cultural upbringing, health and changes to his living arrangements that may make it significantly more difficult for him to spend time with the parties or either of them he must consult with the mother in writing in the manner set out in paragraph 2.

The father, before making any decision in relation to the major long-term issues concerning the child, must:

(a) advise the mother in writing of the decision intended to be made;

(b) seek the mother’s written response in relation to it;

(d) advise the mother in writing as soon as reasonably practicable of his decision.

Living arrangements

School terms

During school terms the child live with the father and spend time with the mother at all times as may be agreed in writing between the parties but failing agreement on alternate weekends from after school Friday (or Thursday if the Friday is a pupil free day or public holiday) until before school Monday (or Tuesday if the Monday is a pupil free day or public holiday), such weekends to coincide with the weekends when JG is spending time with the mother and her partner RG.

School holidays

For the balance of the 2009/2010 Christmas school holiday period, unless the parties have made other arrangements for the child already and subject to any different arrangements which may be agreed in writing between the parties, the child spend 8 days with the mother between 8 and 16 January 2010, with changeover at 12 noon on both of those days.

During school holidays, commencing with the Easter school holiday period in 2010, the child spend time with the mother and the father at all times as may be agreed in writing between the parties but failing agreement:

(a) the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father;

(b) the first half is to commence after school on the last school day of each term; and the second half commence at 9.00am on the middle day of the school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the school term.

Special days

If the child is not already spending time with the mother on Mother’s Day, he spend time with her on that day from 9.00am until 5.00pm.

If the child is not already spending time with the father on Father’s Day, he spend time with him on that day from 9.00am until 5.00pm.

The child spend from 3.00pm on Christmas Eve until 3.00pm on Christmas Day with the party with whom he is not spending the first half of the Christmas school holiday periods.

The child spend two hours on his birthday with the party with whom he is not then spending time unless the child’s birthday is a changeover day, and if no other period be able to be agreed between the parties, the two hours be from 4.00pm until 6.00pm.

Changeover

10.

The following changeover arrangements apply unless otherwise agreed in writing between the parties:

(a) if changeover occurs on a school day, at the child’s school, or after or before school care facility if outside school hours and the parties have notified each other of that;

(b) if changeover occurs on a non school day, the father is to deliver the child to the mother’s home at the commencement of time with the mother and the mother is to deliver the child to the father’s home at the conclusion of time with the mother, provided that the party delivering the child is to remain in his/her motor vehicle at the delivery and ensure that the child proceeds into the home of the other party, and that party is to remain inside his/her home and not approach the delivering party.

The child’s school

11.

Unless and until the father should make a decision as to a different school for the child, by the process set out in paragraph 2, the child is to attend the R State Primary School until the completion of his primary schooling.

Attendance at the child’s school

12.

The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.

Telephone communication

13.

The parties are to permit the child to have liberal telephone communication with the party with whom the child is not spending time, including on special days.

Inability

14.

If the mother proposes at any time that the child not spend time with her as set out in these orders she must notify the father in writing as soon as practicable.

Parties’ communication

15.

All written communications between the parties concerning the child, including in relation to parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the child and the carrying out of these orders.

16.

To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or text message service number and give written notice of any change of such within 24 hours of any change.

Information

17.

The parties must keep each other informed of his and her residential address and emergency contact telephone number and give written notice of any change of such within 24 hours of any change.

18.

The parties must notify each other as soon as practicable of an serious accident or injury concerning the child.

19.

The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.

20.

The parties must authorise the child’s school to provide each party at his/her request and expense copies of school reports concerning the child and any circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

21.

The parties must not denigrate each other in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.

Adult issues

22.

The parties must not discuss adult issues with or in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.

Physical discipline

23.

The parties must not use physical discipline in relation to the child and use their best endeavours to ensure that other persons do not do so.

Drink driving

24.

The parties must not drive the child in any motor vehicle after consuming alcohol nor permit any other person to do so.

Child’s passport and overseas travel arrangements

25.

By the consent of the parties, in accordance with Annexure A.

26.

The minute of orders in relation to Annexure A signed by the parties be placed and kept on the Court file.

All other orders discharged

27.

All other orders concerning the child are discharged.

All other applications dismissed

28.

All other applications concerning the child are dismissed.

Independent children’s lawyer

29.

The independent children’s lawyer is discharged.

Liberty to apply

30.

The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.

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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