Muir and Colley - [2014] FCCA 2445

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUIR & COLLEY

[2014] FCCA 2445

Catchwords:
FAMILY LAW – Parenting – applications relating to parental responsibility – with whom children, aged 8 and 6 years, are to live and spend time – serious concerns in relation to the father’s psychological harm to the children – benefits to the children of any time with the father – established meaningful relationship – consideration of principles to be applied in parenting matters – need to protect children from psychological harm – limited opportunities for time to be spent by father until children attain adolescence.

Legislation:
Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CC(2)(2A) and (3), 61DA, 65DAA

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382

Applicant:

MS MUIR

Respondent:

MR COLLEY

File Number:

BRC 685 of 2011

Judgment of:

Judge Coker

Hearing dates:

19-21 March 2014

Date of Last Submission:

17 April 2014

Delivered at:

Townsville

Delivered on:

31 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Carmody

Solicitors for the Applicant:

Raniga Lawyers

Respondent:

In Person

Counsel for Independent Children’s Lawyer:

Ms Sweetapple

Solicitors for Independent Children’s Lawyer:

SJP Law

ORDERS

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2008, subject to the communication and notification of such decisions to the Father prior to the Mother making any final decisions, such consultation and communication shall include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name.
That the children live with the Mother.
That the Father spend time with the children at all reasonable times as may be agreed, and failing agreement or order of a court of competent jurisdiction, supervised at Relationships Australia or other centre in close proximity to the Mother’s residence as arranged between the Father, the Mother and the contact centre.
That the time that the Father spends with the children is to be for periods no more frequently than each fortnight and if less frequently, as Relationships Australia or other centre can otherwise accommodate.
To give effect to Order 3 herein, the Mother and the Father are to do all acts and things required of them and to participate in any intake requirements of Relationships Australia, or other centre, within 14 days of the date of this order.
The costs of the use of the centre are to be the sole responsibility of the Father.
Telephone communication shall occur with the Father to telephone the children each Thursday at 6:00pm and should the children be spending time with the Father, the Mother shall be at liberty to telephone the children at all reasonable times on a number provided by the Father prior to any unsupervised time being spent by the Father with the children.
When it is necessary…

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 Muir and Colley

Details

AGLC: Muir and Colley [2014] FCCA 2445
Case: [2014] FCCA 2445
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of *Muir and Colley*, heard by Judge Coker, the dispute concerned parenting orders for two children, X and Y. The orders addressed issues of parental responsibility, living arrangements, and the father's time with the children.

The court was required to determine the terms of parenting orders, including the allocation of parental responsibility for long-term decisions, the children's primary residence, the nature and frequency of the father's time with the children, communication protocols between the parents, and provisions for future reviews of the orders.

The court ordered that the mother have sole parental responsibility for long-term decisions regarding the children's care, welfare, and development, subject to communication and notification to the father prior to final decisions on matters such as education, religious and cultural upbringing, health, and name. The children were ordered to live with the mother. The father was granted supervised time with the children, to occur no more frequently than fortnightly, with arrangements to be made through Relationships Australia or a similar centre. The father was to bear the costs of supervised contact. Specific communication protocols were established, including email for information exchange limited to specific matters and a standing arrangement for telephone contact. Both parents were ordered to refrain from making derogatory remarks about each other or their families in the presence of the children and to prevent others from doing so. The orders also stipulated that neither parent was to discuss the proceedings or court orders with the children. Provisions were made for a review of the father's time with the children after the younger child's 12th birthday, requiring consultation with a Family Dispute Resolution Practitioner.

Orders

Orders of the court

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2008, subject to the communication and notification of such decisions to the Father prior to the Mother making any final decisions, such consultation and communication shall include but not be limited to:

(a) a child’s education (both current and future);

(b) child’s religious and cultural upbringing;

(d) a child’s name.

That the children live with the Mother.

That the Father spend time with the children at all reasonable times as may be agreed, and failing agreement or order of a court of competent jurisdiction, supervised at Relationships Australia or other centre in close proximity to the Mother’s residence as arranged between the Father, the Mother and the contact centre.

That the time that the Father spends with the children is to be for periods no more frequently than each fortnight and if less frequently, as Relationships Australia or other centre can otherwise accommodate.

To give effect to Order 3 herein, the Mother and the Father are to do all acts and things required of them and to participate in any intake requirements of Relationships Australia, or other centre, within 14 days of the date of this order.

The costs of the use of the centre are to be the sole responsibility of the Father.

Telephone communication shall occur with the Father to telephone the children each Thursday at 6:00pm and should the children be spending time with the Father, the Mother shall be at liberty to telephone the children at all reasonable times on a number provided by the Father prior to any unsupervised time being spent by the Father with the children.

When it is necessary to exchange information or to discuss issues about the child the parties shall do so by email.

Emails shall be limited to such matters as:

(a) Any special medication required by the child;

(b) Any other unscheduled or periodic activities or events of which the other parent should be aware; and

and shall not include any other matters such as observations or comments upon the other parent’s parenting.

10.

That each party keep the other informed of their address, telephone number and email address and give notice of any change within 48 hours of such change.

11.

That these Orders are sufficient authority for the children’s educational and health service providers to provide to the Father any information, document or thing in relation the children (including but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing, with the parent seeking such information, document or thing to be responsible for the costs associated with obtaining same.

12.

That each parent refrain from making critical or derogatory remarks about the other parent, members of the other parent’s family or partner in the presence of the children and that each parent shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent, members of the other parent’s family or partner in the presence of or within the hearing of the children.

13.

That neither party shall discuss these proceedings or the orders of the Court with the children nor permit any other person to discuss these proceedings or the orders of the Court with or in the presence of or hearing of the children.

14.

Unless otherwise agreed previously by the parties, on a date following (omitted) 2020, the 12th birthday of Y, the parties shall take steps to consult with a Family Dispute Resolution Practitioner to consider any changes to the time to be spent by the Father with the children and/or the conditions attaching to such time to be spent by the Father with the children and:

(a) The parents shall pay the costs of the Family dispute resolution Practitioner equally;

(b) In the event that they cannot agree on a Family dispute resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;

(d) If the Father fails to choose, then the Mother may choose.

15.

Before an application is made to a Court for a variation of these orders compliance with Order 14 herein is required and the production of the appropriate certificate relating to Family Dispute Resolution having been attempted.

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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