FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyland & Shearer (No 2) [2024] FedCFamC2F 350
File number(s): CAC 1659 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PARENTING – wide range of issues on display at trial – major problems with expert who was de-registered in the course of the trial – ultimately parties agreed on most issues in dispute including the two girls of the relationship (aged 14 and 11) remaining to live with the Father in City D and spending time with the Mother in Queensland – one of the few remaining issues related to parental responsibility – significant concerns about the lack of insight of the Mother in the light of her evidence – Orders for sole parental responsibility in the Father’s favour. Legislation: Family Law Act 1975 (Cth) s.60CC(3) Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey & Saunders (2007) 208 FLR 287
In the Marriage of Kress (1976) 13 ALR 309
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Moyland & Shearer [2023] FedCFamC2F 1202
Partington v Cade (No.2) (2009) 42 Fam LR 401
Sigley v Evor (2011) 44 Fam LR 439
Division: Division 2 Family Law Number of paragraphs: 147 Date of last submission/s: 8 January 2024 Date of hearing: 23 August 2023 Place: Canberra Counsel for the Applicant Ms R. Dart Solicitor for the Applicant Robinson + McGuinness Family Law Counsel for the Respondent Mr I. Duane Solicitor for the Respondent Farrar Gesini Dunn (up to 15 October 2023)
Foster Johnson (from 16 October 2023)Independent Children’s Lawyer Legal Aid ORDERS
CAC 1659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOYLAND
Applicant
AND: MS SHEARER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
21 MARCH 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father shall have sole parental responsibility for X (born in 2010) and Y (born in 2013) (‘the children’).
2.Before making a decision about a major, long-term issue in the exercise of sole parental responsibility:
(a)The Father shall contact the Mother and:
(i)Inform the Mother of the decision required;
(ii)Inform her of any view he has about the decision; and
(iii)Seek her view on the decision to be made.
(b)The Mother shall provide her response, if any, within 7 days and the Father shall give consideration to her input or comment prior to making the required decision; and
(c)The Father shall notify the Mother of the decision that was made, within 14 days after the date on…
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- AGLC
- Moyland & Shearer (No 2) [2024] FedCFamC2F 350
- Case
- [2024] FedCFamC2F 350
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the allocation of sole parental responsibility, the children's educational arrangements, and the detailed time-sharing schedule between the parents. The court also had to consider the credibility and insight of the mother, as well as the admissibility of evidence from an expert witness who was de-registered during the trial. Ultimately, the court was required to balance the best interests of the children with the preferences and circumstances of both parents.
The court found that the best interests of the children were served by awarding sole parental responsibility to the father. It was noted that the mother's lack of insight was a significant concern, impacting her ability to provide adequate care for the children. Despite the mother's objections, the court ruled that the children should live with the father in City D and spend time with the mother in Queensland during specified periods. The court also mandated that the father consult with the mother on major, long-term decisions and required the mother to provide timely notice of her intention to spend time with the children.
The final orders of the court granted sole parental responsibility to the father, established specific educational and time-sharing arrangements, and mandated communication between the parties through a designated parenting app. Additionally, the court ordered that the mother would cover the costs associated with her travel to and from Queensland. All previous interim parenting orders were discharged, and the children were to attend a specified school in Suburb G. Each party was required to contribute equally to the children's educational costs.
Orders
Orders of the court
CAC 1659 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MOYLAND
Applicant
AND:
MS SHEARER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
21 MARCH 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. The Father shall have sole parental responsibility for X (born in 2010) and Y (born in 2013) (‘the children’).
2. Before making a decision about a major, long-term issue in the exercise of sole parental responsibility:
(a) The Father shall contact the Mother and:
(i) Inform the Mother of the decision required;
(ii) Inform her of any view he has about the decision; and
(iii) Seek her view on the decision to be made.
(b) The Mother shall provide her response, if any, within 7 days and the Father shall give consideration to her input or comment prior to making the required decision; and
(c) The Father shall notify the Mother of the decision that was made, within 14 days after the date on which it was made.
3. The children shall attend F SCHOOL, SUBURB G for their high school education.
4. Each party shall pay half of the educational costs of the children.
5. The parties are to communicate via a parenting app to be agreed upon.
AND THE COURT FURTHER ORDERS, ON A FINAL BASIS, BY CONSENT THAT:
6. All previous interim parenting orders are discharged.
Time Arrangements
7. The children shall live with the Father in City D.
8. The children shall spend time with the Mother during the school term as follows:
(a) On the third weekend of the school term, from 4pm on Friday until 9am or the commencement of school the following Monday, in the event the Mother travels to City D; and
(b) On the seventh weekend of the school term, from after school on Friday until Sunday evening with the Mother and the Mother provide the Father with 14 days’ notice of whether time is to occur in City D or Brisbane; and
(c) For the purpose of Orders 8(a) and 8(b), the Mother is to provide the Father with written notice of her intention to spend time with the children not less than 14 days prior to the time occurring or such time shall not proceed.
9. The children shall spend time with the Mother during school holiday periods as follows:
(a) During the term 1, 2, and 3 school holidays, for a period of 10 nights, commencing the first day of the school holiday period as defined by these Orders; and
(b) During the term 4 / summer school holidays;
(i) In 2023 and each alternate year thereafter, for the second half of the term 4 / summer school holidays; and
(ii) In 2024 and each alternate year thereafter, for the first half of the term 4 / summer school holidays.
10. For the purposes of Order 9 above:
(a) The school holiday period will commence at 10:00am on the day following the last day requiring attendance at school and conclude at 3:00pm on the Sunday prior to the first day of the following school term;
(b) For the avoidance of doubt:
(i) The term 4 2023 school holidays shall commence on 15 December 2023, and conclude on 28 January 2024; and
(ii) The term 4 2024 school holidays shall commence on 21 December 2024, and conclude on 2 February 2025.
(c) For the purpose of Orders 7(b):
(i) Changeovers shall be 3pm on the middle day of the school holidays period as defined by the immediately preceding order; and
(ii) In the event there is an odd number of days in any school holiday period as defined by these Orders, the following shall apply:
A. In 2023 and each alternate year thereafter, the children shall spend the additional day with the Father; and
B. In 2024 and each alternate year thereafter, the children shall spend the additional day with the Mother.
(d) The Mother shall book and pay for all return airfares and other costs associated with her and/or the children’s travel to and from Queensland.
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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