Munayallan and Scott (No 2) - [2019] FamCA 676

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT (NO. 2)

[2019] FamCA 676

FAMILY LAW – CHILDREN – Final hearing – With whom a child lives and spends time – Where the children have lived with the parties in equal time since 2014 – Where the husband seeks to continue the arrangement – Where the relationship between the parties is becoming increasingly fractured – Where the wife seeks to reduce the husband’s time with the children to five nights per fortnight – Orders.

Family Law Act 1975 (Cth) ss60B, 60B(2), 60B(3), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA

Champness & Hanson (2009) FLC 93-407
Sigley & Evor [201]] FamCAFC 22

APPLICANT:

Ms Munayallan

RESPONDENT:

Mr Scott

FILE NUMBER:

SYC

2010

DATE DELIVERED:

15 August 2019

PLACE DELIVERED:

Darwin

PLACE HEARD:

Sydney

JUDGMENT OF:

Berman J

HEARING DATE:

17 to 21 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duc

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

That the parties shall have shared parental responsibility for C born … 2007 and D born … 2010 (collectively “the children”) PROVIDED that the wife shall have sole parental responsibility for their health and education and shall use her best endeavours to reach agreement with the husband on any health and education related topic but if unable to do so THEN the wife shall make the necessary decisions and advise the husband as soon as is reasonably practicable thereafter.
That the children shall live with the wife.
That the children shall spend time with the husband as follows:-
(a)From the conclusion of school on Thursday to the commencement of school on the following Monday commencing 22 August 2019 and each alternate week thereafter;
(b)For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;
(c)For one half of the Christmas school holidays as agreed between the parties but in default of agreement THEN the children are to spend time with the husband in the first half of the Christmas school holidays commencing at 10.00 am on the first day of the holidays and concluding at 5.00 pm on the middle day of the holidays NOTING that the Christmas school holidays shall be deemed to have concluded at 5.00 pm on the last day of the Christmas school holidays before the commencement of the school term.
That the children spend time with the parties as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;
(ii)Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;
(b) On the children’s birthdays in each year:-
(i)If the child’s birthday falls on a day…

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 Munayallan and Scott (No 2)

Details

AGLC: Munayallan and Scott (No 2) [2019] FamCA 676
Case: [2019] FamCA 676
Decision Date: 15 August 2019

CaseChat Overview and Summary

This matter concerned orders made by Berman J regarding the parental responsibility and time arrangements for two children, C and D. The dispute involved the parents' differing views on how the children should be raised and the practical arrangements for their care and contact with each parent.

The court was required to determine the specific terms of shared parental responsibility, including the allocation of decision-making authority for the children's health and education. Further issues included establishing the primary residence of the children, the quantum and timing of the children's time with each parent, and provisions for holidays, including overseas travel. The court also had to address communication protocols between the parties, the management of the children's passports, and the prevention of denigration of either parent in the children's presence.

Berman J ordered that the parties share parental responsibility for the children, with the wife having sole responsibility for their health and education, subject to a requirement to endeavour to agree with the husband on these matters and to make decisions if agreement could not be reached. The children were ordered to live with the wife, with specific provisions for their time with the husband, including alternate weekends, half of school holidays, and specific arrangements for Christmas holidays. The orders also detailed arrangements for Mother's Day, Father's Day, and the children's birthdays, and set out conditions for overseas travel, including notice periods and the provision of itineraries. The wife was ordered to inform the husband of the children's health professionals and to authorise schools to provide information to him. Crucially, the court ordered that neither party denigrate the other in the children's presence and established communication protocols. The husband was ordered to deliver up the children's passports to the wife, who would retain them, with provisions for their release to the husband for overseas travel, and the parties were restrained from using the children's Country X passports for travel.

Orders

Orders of the court

That the parties shall have shared parental responsibility for C born … 2007 and D born … 2010 (collectively “the children”) PROVIDED that the wife shall have sole parental responsibility for their health and education and shall use her best endeavours to reach agreement with the husband on any health and education related topic but if unable to do so THEN the wife shall make the necessary decisions and advise the husband as soon as is reasonably practicable thereafter.

That the children shall live with the wife.

That the children shall spend time with the husband as follows:-

(a) From the conclusion of school on Thursday to the commencement of school on the following Monday commencing 22 August 2019 and each alternate week thereafter;

(b) For one half of all short school holidays as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00 pm eight (8) days thereafter;

(c) For one half of the Christmas school holidays as agreed between the parties but in default of agreement THEN the children are to spend time with the husband in the first half of the Christmas school holidays commencing at 10.00 am on the first day of the holidays and concluding at 5.00 pm on the middle day of the holidays NOTING that the Christmas school holidays shall be deemed to have concluded at 5.00 pm on the last day of the Christmas school holidays before the commencement of the school term.

That the children spend time with the parties as follows:-

(a) On Mother’s Day and Father’s Day in each year:-

(i) Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;

(ii) Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;

(b) On the children’s birthdays in each year:-

(i) If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with the child THEN the child will spend time with the husband from 2.00 pm until 7.00 pm;

(ii) If the child’s birthday falls on a day that is not a school day and the husband has the care of the child THEN the child will spend time with the wife from 2.00 pm until 7.00 pm;

(iii) If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child THEN the child will spend time with the husband from the conclusion of school until 6:30 pm;

(iv) If the child’s birthday falls on a school day and the wife would not otherwise have the care of the child THEN the child will spend time with the wife from the conclusion of school until 6:30 pm.

That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-

(a) The party requesting the holiday time shall provide forty two (42) days written notice to the other party;

(b) Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;

(c) That in the Christmas school holidays commencing 2019 and each alternate year thereafter the wife at her election can seek the children’s time with her be extended to thirty (30) days;

(d) That in the Christmas school holidays commencing 2020 and each alternate year thereafter the husband at his election can seek the children’s time with him be extended to thirty (30) days.

When giving notice of any intended holidays each party shall provide the other with the following information:-

(a) an itinerary;

(b) flight and/or accommodation details;

That the wife shall inform the husband of the identity and contact details of any health professional (including dental) involved with the children’s care and shall authorise the health professionals to communicate with the husband and to release any information to him as he may request.

That the wife shall authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photos of the children (at the husband’s expense) to be provided to him and such other information as he may request.

That neither party shall denigrate the other in the presence or hearing of the children or permit the children to remain in the presence or hearing of any person who shall engage in such conduct.

10.

That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.

11.

That for the purpose of communicating information between the parties the wife and husband shall:-

(a) communicate by telephone matters of an urgent nature and otherwise;

(b) communicate by email about day to day matters including arrangements for each party to spend time with the children.

12.

The husband shall forthwith deliver up to the wife any passports (whether Country X or Australian) pertaining to the children and held by him to the wife who thereafter shall retain the children’s passports subject to receiving notice from the husband of his intention to take the children overseas in which case the wife shall cause the children’s Australian passports to be delivered up to the husband fourteen (14) days prior to the intended date of travel PROVIDED that the husband shall return the passports to the wife within forty eight (48) hours of the children’s return to the Commonwealth of Australia.

13.

That the parties are restrained by mandatory injunction requiring the children to only travel on their Australian passports and not their Country X passports.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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