MUSSEN & DREW - [2013] FCCA 876

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUSSEN & DREW

[2013] FCCA 876

Catchwords:
FAMILY LAW – Parenting – equal shared parental responsibility – finding appropriate and in the best interests of the child – consideration of section 65DAA requirements – determination that equal time or alternatively substantial and significant time were impracticable due to lack of proximity between Victoria and Queensland – consideration of objects and principles relating to parenting – application to circumstances existing in the matter – evenly balanced factors favouring both parties – recognition of importance of existing and future sibling bonds relating to the child the subject of the application and children of each parent of other relationships.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE

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

Applicant:

MR MUSSEN

Respondent:

MS DREW

File Number:

TVC 395 of 2012

Judgment of:

Judge Coker

Hearing dates:

4 & 5 April and 8 May 2013

Date of Last Submission:

8 May 2013

Delivered at:

Townsville

Delivered on:

2 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Mayes

Solicitors for the Applicant:

Purcell Taylor Lawyers

Counsel for the Respondent:

Mr Fellows

Solicitors for the Respondent:

MacDonnells Law

ORDERS

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2007, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.
That in the event both parents are residing in the same locality, that the parents spend equal time with the Child on a week about basis, to continue through the school holidays except the Christmas school holidays whereupon the parents are to spend half the Christmas school holidays with the child as detailed in paragraph 6(c) of this Order.
That the Child live with the Mother in Townsville.
That the child spend time with the Father at all times as may be agreed and failing agreement as follows:
(a)For the whole of the Easter school holidays each year;
(b)For the whole of either the June/July school holidays or the October school holidays each year;
(c)For…

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 MUSSEN & DREW

Details

AGLC: MUSSEN & DREW [2013] FCCA 876
Case: [2013] FCCA 876
Decision Date: 2 August 2013

CaseChat Overview and Summary

This matter concerned an application by the Mother and the Father regarding the parenting arrangements for their child, [X], born in 2007. The dispute centred on the division of parental responsibilities and the time the child would spend with each parent. Judge Coker presided over the proceedings.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues concerning the child, including education, religious and cultural upbringing, health, and name. Additionally, the court needed to establish the practical arrangements for the child's day-to-day care, the specific time the child would spend with each parent, and the allocation of travel costs associated with these arrangements. The court also considered provisions for communication between the child and each parent, and prohibitions against denigration and substance abuse in the child's presence.

In its reasoning, the court ordered that the Mother and Father have equal shared parental responsibility for the child's major long-term issues, mandating consultation and a genuine effort to reach joint decisions. The court stipulated that the Mother would be responsible for the child's day-to-day care while the child was with her, and the Father would have the same responsibility when the child was with him. The child was ordered to live with the Mother in Townsville, with provisions for equal time with the Father on a week-about basis if the parents resided in the same locality, and specific arrangements for school holidays. The court also detailed the division of travel costs, requiring the parent with whom the child was to spend time to book and pay for the child's travel, and outlined requirements for notice of travel arrangements. Further orders included reasonable communication between the child and each parent, and prohibitions against denigration and substance abuse.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2007, including but not limited to:

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

(b) the child’s religious and cultural upbringing;

(d) the child’s name.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 1 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.

That in the event both parents are residing in the same locality, that the parents spend equal time with the Child on a week about basis, to continue through the school holidays except the Christmas school holidays whereupon the parents are to spend half the Christmas school holidays with the child as detailed in paragraph 6(c) of this Order.

That the Child live with the Mother in Townsville.

That the child spend time with the Father at all times as may be agreed and failing agreement as follows:

(a) For the whole of the Easter school holidays each year;

(b) For the whole of either the June/July school holidays or the October school holidays each year;

(c) For half of the Christmas school holidays each year, with the child spending the first half of the Christmas school holidays with the Mother and the second half with the Father in each even numbered year, and the child to spend the first half of the Christmas school holidays with the Father and the second half with the Mother in each odd numbered year;

(d) In the event the Father travels to Townsville and provided he gives the Mother no less than four (4) week’s notice, the Father is to spend no less than 48 hours with the child as agreed.

(e) In the event the Mother travels to Victoria with the child, the Mother is to make the child available to spend reasonable time with the Father as agreed.

That the costs of travel be equally shared between the parties as follows:

(a) The parent with whom the child is to spend time to book and pay for the child’s travel to that parent. That parent to also book and pay for his or her own travel to accompany the child whilst the child is not allowed to travel unaccompanied;

(b) That whilst the child is unable to travel unaccompanied, changeover to be at the airport in the city from which the child is being collected, ie changeover to be at Melbourne airport when the child is coming into the mother’s care and the Townsville airport when the child is coming into the father’s care;

(c) Upon the child being able to travel unaccompanied, the Father to deliver and collect the child from the Melbourne airport and the Mother to deliver and collect the child from the Townsville airport;

(d) That each parent provide the other parent with no less than fourteen (14) days’ notice of the travel arrangements for the child for that holiday period;

(e) That this paragraph only refers to travel specified at paragraphs 6(a) to (c) of this Order. Any other travel for either parent to spend time with the child shall be at that parent’s cost.

That each parent have reasonable unlimited telephone and Skype communication with the Child.

That neither parent denigrate the other parent or members of the other parent’s family in the child’s presence nor allow any other person to do so in front of the child.

10.

That neither parent consume any illicit substances whilst the child is in his or her care.

11.

That neither parent drink to excess whilst the child is in his or her care.

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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