Munro and Elmi - [2012] FamCA 122

FAMILY COURT OF AUSTRALIA

MUNRO & ELMI

[2012] FamCA 122

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Munro

RESPONDENT:

Mr Elmi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

1749

2009

DATE DELIVERED:

9 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

16, 17, 20, 21, 22 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney with Ms Paterson

SOLICITOR FOR THE APPLICANT:

Howard Bear – Legal Consulting Services

COUNSEL FOR THE RESPONDENT:

Mr Dixon SC with Ms Wheeler

SOLICITOR FOR THE RESPONDENT:

Sharrock Pitman Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all extant parenting orders are discharged.
That the mother have sole parental responsibility for making decisions about any major long term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth)) concerning the child S born … November 2007.
That the mother advise the father in writing of her decisions.
Nothing in paragraph 3 of these orders shall be construed as requiring the mother to consult with the father nor as requiring the father to respond to any letter of the mother.
That S live with the mother at all times other than those set out in paragraph 6 hereof.
That S live with the father as follows:
(a)     until he commences the first term of his first year at school:
i.from 5.00pm on Friday to 9.00am on the following Monday morning in each alternate week commencing at 5.00pm on 16 March 2012; and
ii.from 5.00pm on Wednesday to 9.00am on the following Thursday in each alternate week commencing at 5.00pm on 21 March 2012;
(b)     upon S commencing the first term of his first year at school:
i.from 3.15pm on Thursday to 9.00am on the following Monday in each alternate week commencing at 3.15pm on the first Thursday after school commences in that first year;
ii.the first week of each school term holidays (but not the long summer holidays) commencing at 9.00am on the day after school concludes for the school term;
(c)     regardless of whether S has commenced school or not:
i.from 12 noon on Christmas Day until 5.00pm on 26 December in each year;
ii.from 5.00pm on 4 November 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 5 November 2012 and for a similar period in each alternate year thereafter;
iii.from 5.00pm on Saturday before Father’s Day until 5.00pm on Father’s Day in each year;
iv.from 5.00pm on 8 September 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 9 September 2012 and for a similar period in each alternate year thereafter;
v.during all long summer school holidays commencing in the holidays at the end of 2012 as follows:
a.   in 2012/2013 for four days in each alternate week commencing 1 January 2013 at 9.00am;
b.   for the holiday period in 2013/2014 during each…

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 Munro and Elmi

Details

AGLC: Munro and Elmi [2012] FamCA 122
Case: [2012] FamCA 122
Decision Date: 9 March 2012

CaseChat Overview and Summary

In the matter of *Munro and Elmi*, Cronin J considered a dispute between the parents of a child, S, concerning parenting orders. The case involved applications by both the mother and the father, with the mother seeking sole parental responsibility for major long-term decisions and the father seeking specific time with the child.

The court was required to determine the most appropriate parenting arrangements for S, considering the parents' respective applications and the child's best interests. This involved assessing the level of parental responsibility to be allocated to each parent for significant decisions, as well as establishing a detailed schedule for the child's living arrangements with each parent.

Cronin J discharged all extant parenting orders and made new orders. The mother was granted sole parental responsibility for major long-term decisions concerning S, with the requirement to advise the father in writing of her decisions, though without an obligation to consult him. S was ordered to live with the mother, with specific, detailed periods of time allocated for S to live with the father, including alternate weekends, mid-week stays, and specific holiday periods. The orders also stipulated detailed arrangements for changeovers, telephone contact, and the suspension of time with the father on Mother's Day and 10 November.

Orders

Orders of the court

That all extant parenting orders are discharged.

That the mother have sole parental responsibility for making decisions about any major long term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth)) concerning the child S born … November 2007.

That the mother advise the father in writing of her decisions.

Nothing in paragraph 3 of these orders shall be construed as requiring the mother to consult with the father nor as requiring the father to respond to any letter of the mother.

That S live with the mother at all times other than those set out in paragraph 6 hereof.

That S live with the father as follows:

(a) until he commences the first term of his first year at school:

i. from 5.00pm on Friday to 9.00am on the following Monday morning in each alternate week commencing at 5.00pm on 16 March 2012; and

ii. from 5.00pm on Wednesday to 9.00am on the following Thursday in each alternate week commencing at 5.00pm on 21 March 2012;

(b) upon S commencing the first term of his first year at school:

i. from 3.15pm on Thursday to 9.00am on the following Monday in each alternate week commencing at 3.15pm on the first Thursday after school commences in that first year;

ii. the first week of each school term holidays (but not the long summer holidays) commencing at 9.00am on the day after school concludes for the school term;

i. from 12 noon on Christmas Day until 5.00pm on 26 December in each year;

ii. from 5.00pm on 4 November 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 5 November 2012 and for a similar period in each alternate year thereafter;

iii. from 5.00pm on Saturday before Father’s Day until 5.00pm on Father’s Day in each year;

iv. from 5.00pm on 8 September 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 9 September 2012 and for a similar period in each alternate year thereafter;

v. during all long summer school holidays commencing in the holidays at the end of 2012 as follows:

a. in 2012/2013 for four days in each alternate week commencing 1 January 2013 at 9.00am;

b. for the holiday period in 2013/2014 during each alternate week 1 January and for the holiday period 2013/2014 and thereafter, for one half of the holiday period by agreement and failing agreement, the first half.

For the purposes of calculating the long summer holiday period from 2013/2014 onwards, the period shall commence at 9.00am on 27 December and conclude at 9.00am on 27 January.

That all weekday periods of time in paragraphs 6(a)(i) and (ii) and 6(b)(i) shall be suspended during all school term and long summer holidays and shall resume once the school terms resume as if they had not been interrupted by the holidays.

For the purposes of paragraph 6(a)(i) and (ii) the mother deliver S to the father and collect him from the father, outside the childcare centre currently attended by S whether it is open and operating or not and each of the mother and the father shall be entitled to have another person present with them at that particular time.

10.

For the purposes of all changeovers in paragraph 6(b)(i) the father collect S from his school at 3.15pm or so soon thereafter as school concludes on the Friday and return him to school by 9.00am on the following Monday (or the Tuesday if the Monday is a day which the school has declared as a non-school day).

11.

For the purposes of all changeover in paragraph 6(b)(ii) notwithstanding that S’s school is closed, the collection and return handovers shall occur outside S’s school and each of the mother and the father shall be entitled to have another person present with them at that time.

12.

That for the purposes of paragraph 6(c), to the extent that the collection or return handover is required, it shall occur outside S’s school (or if he has not commenced at a school, the school that the mother nominates he will attend) and each of the mother and the father shall be entitled to have another person present.

13.

That for the purposes of paragraph 6(b)(i) only, to the extent that the father cannot personally attend S from school at 3.15pm, he may make arrangements with the school for S to attend an “out of school hours care service” but only conducted by that school and his authority to do so shall be these orders.

14.

Any time between the father and S shall be suspended on the following days and times:

(a) 10 November; and

(b) Mother’s Day

and for the purposes of this order, if S is in the father’s care on either of those days, he shall be returned by the father to the mother at 9.00am on that day and the changeover provisions shall be as applicable under these orders as at that time.

15.

That the father be at liberty to telephone S (and the mother facilitate the call accordingly) at 7.00pm on Tuesday night.

16.

That the mother be at liberty to telephone S (and the father facilitate the call accordingly) at 7.00pm on Sunday nights when he is in the father’s care.

17.

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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