Neave and Kane - [2012] FMCAfam 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEAVE & KANE

[2012] FMCAfam 687

FAMILY LAW – Parenting order – consideration of primary and secondary factors – whether child should live with mother or father – whether child should spend equal time with mother and father – whether further interim or final orders to be made.

Family Law Act 1975, ss.11, 60CC(2)(a) and (b), (3)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) and (l), (4), (4A) [62B, 65DA(2)]

Cardaklija v Cardaklija [2007] FMCAfam 16
Godfrey & Sanders [2007] FamCA 102
M & K [2007] FMCAfam 214
M & S [2006] FamCA 1408

P & P [2006] FMCAfam 518

Applicant:

MS NEAVE

Respondent:

MR KANE

File Number:

DGC 290 of 2007

Judgment of:

Lucev FM

Hearing date:

18 April 2012

Date of Last Submission:

18 April 2012

Delivered at:

Melbourne

Delivered on:

16 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms Conlan

Solicitors for the Applicant:

Bayani Harvey Lawyers

Counsel for the Respondent:

Ms Gordon

Solicitors for the Respondent:

Belleli King & Associates

Counsel for the Independent Children’s Lawyer:

Mrs Mandelert

Solicitors for the Independent Children’s Lawyer:

Bowlen Dunstan & Associates Pty

ORDERS THAT UNTIL FURTHER ORDER:

All previous parenting orders in this matter be discharged.
The mother and father have equal shared parental responsibility for the child X born (omitted) 2004 (the “child”) on the condition that any matters relating to the long term care, welfare and development of the child are to be negotiated between the mother and father in mediation at the Family Relationship Centre at (omitted) in the first instance.
The child will live with the mother as follows:
(a)From 3.30pm or the conclusion of school commencing on Tuesday 17 July 2012 and each alternate Tuesday thereafter for 6 consecutive nights, until 9.00am or the commencement of school on the following Monday, until 8 October 2012;
(b)From 3.30pm or the conclusion of school on Monday 8 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;
(c)By telephone each Tuesday, Thursday and Sunday between 5pm and 5.30pm when the child is not in the mother’s care, with the mother to initiate the call and the father to facilitate the call; and
(d)At such further and other times as may be agreed between the parties.
The child will live with the father as follows:
(a)From 3.30pm or the conclusion of school commencing Monday 23 July 2012 and each alternate Monday thereafter for 8 consecutive nights, until 9.00am or the commencement of school on the following Tuesday, until 8 October 2012;
(b)From 3.30pm or the conclusion of school on Monday 15 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;
(c)From 5pm on Father’s Day Eve until 5pm on Father’s Day in the event this does not otherwise fall during the father’s time with the child;
(d)By telephone each Tuesday, Thursday and Sunday…

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 Neave and Kane

Details

AGLC: Neave and Kane [2012] FMCAfam 687
Case: [2012] FMCAfam 687
Decision Date: 16 July 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Neave and Kane involved a dispute between the mother and father of a child born in 2004 concerning the child’s care and welfare. The parents sought to resolve their differences through the court to establish a parenting arrangement that would best serve the child’s interests. The matter was presided over by a Family Court judge, who was tasked with determining the most appropriate living arrangements and shared parental responsibilities for the child.

The central legal issues before the court involved the allocation of parental responsibilities and the determination of a suitable parenting plan. The court needed to decide whether the parents should have equal shared parental responsibilities and, if so, how to structure the living arrangements to ensure the child's welfare and development were adequately supported. Additionally, the court considered the need for specific orders to govern communication, medical care, and the child’s education, as well as the necessity for counselling to address any relational issues arising from the parents' separation.

The court's reasoning was grounded in the best interests of the child, as mandated by the Family Law Act. It concluded that equal shared parental responsibility was in the child’s best interest, provided that the parents engaged in mediation to resolve any disputes. The court outlined a detailed schedule for the child's time with each parent, incorporating provisions for regular communication and the sharing of medical and educational responsibilities. The court also emphasised the importance of the child’s mental health and the need for ongoing counselling to support her development. Orders were made to prevent the parents from weighing the child, to ensure the child’s attendance at school and medical appointments, and to prohibit any derogatory remarks about the other parent in the child’s presence.

The final orders included the discharge of previous parenting orders, the establishment of equal shared parental responsibility, and a specific schedule for the child’s time with each parent. The orders also addressed communication, medical care, education, and the necessity for ongoing counselling. The court restrained the parents from certain actions that could negatively impact the child and required them to cooperate in various aspects of the child's life, including facilitating access to school reports and attending school events. The matter was set for a final hearing, with liberty to apply for interim orders as necessary.

Orders

Orders of the court

ORDERS THAT UNTIL FURTHER ORDER:

1. All previous parenting orders in this matter be discharged.

2. The mother and father have equal shared parental responsibility for the child X born (omitted) 2004 (the “child”) on the condition that any matters relating to the long term care, welfare and development of the child are to be negotiated between the mother and father in mediation at the Family Relationship Centre at (omitted) in the first instance.

3. The child will live with the mother as follows:

(a) From 3.30pm or the conclusion of school commencing on Tuesday 17 July 2012 and each alternate Tuesday thereafter for 6 consecutive nights, until 9.00am or the commencement of school on the following Monday, until 8 October 2012;

(b) From 3.30pm or the conclusion of school on Monday 8 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;

(c) By telephone each Tuesday, Thursday and Sunday between 5pm and 5.30pm when the child is not in the mother’s care, with the mother to initiate the call and the father to facilitate the call; and

(d) At such further and other times as may be agreed between the parties.

4. The child will live with the father as follows:

(a) From 3.30pm or the conclusion of school commencing Monday 23 July 2012 and each alternate Monday thereafter for 8 consecutive nights, until 9.00am or the commencement of school on the following Tuesday, until 8 October 2012;

(b) From 3.30pm or the conclusion of school on Monday 15 October 2012 and each alternate Monday thereafter for 7 consecutive nights, until 9.00am or the commencement of school on the following Monday;

(c) From 5pm on Father’s Day Eve until 5pm on Father’s Day in the event this does not otherwise fall during the father’s time with the child;

(d) By telephone each Tuesday, Thursday and Sunday between 5pm and 5.30pm when the child is not in the father’s care, with the father to initiate the call the mother to facilitate the call; and

(e) At such further and other times as may be agreed between the parties.

5. Where changeover between the parties’ time with the child occurs on a non-school day the changeover is to be at the entrance to the (omitted) Library, (omitted).,

6. Each party be and is hereby restrained from removing the child from (omitted) Primary School (“the school”) without agreement in writing between the mother, the father and the Independent Children’s Lawyer.

7. In the event the child does not attend school the parent who has the child in their care at the relevant time must provide to all parties as soon as practicable a medical certificate explaining the absence.

8. In the event either party withholds or intends to withhold the child from time with the other parent they must immediately advise all other parties and apply to the Court as a matter of urgency.

9. The mother continue to attend upon and follow the recommendations of Dr L or his nominee.

10. The father continue to attend upon and follow the recommendations of Mr R or his nominee.

11. The mother and father follow all recommendations and directions of the child’s treating general practitioners about the amount and types of food the child should be eating and the amount of exercising the child should be undertaking.

12. The mother and father be and are hereby restrained from weighing the child or having the child weighed.

13. The mother and father do all acts and things necessary to facilitate the child’s further or continued attendance upon a counsellor (the “child’s counsellor”) recommended by the Independent Children’s Lawyer, if such further or continued attendance be considered necessary by the Independent Children’s Lawyer, with any associated costs to be shared equally between the mother and the father.

14. A further updated Family Report to be provided to the Court by 28 February 2013.

15. The parties do all acts and things necessary to authorise the child’s counsellor to speak with the mother and fathers’ respective counsellors and the Family Report Writer.

16. The mother and father follow all reasonable directions and recommendations of the child’s counsellor to facilitate the improvement of the child’s relationships with her family members and to implement these orders.

17. The mother and father inform the other of any serious illness, hospitalisation or injury sustained by the child whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the child together with the contact details for the treating doctor/s.

18. Each of the mother and father be and is hereby restrained from denigrating the other parent or any member of that parent’s family in the presence or hearing of the child or allowing any other person to do so.

19. The father will authorise and facilitate the mother in obtaining copies of school reports and any other written information available to a parent from the school and both the mother and father be permitted and authorised to attend any school or extracurricular events that parents ordinarily attend.

20. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these order create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.

21. The matter be listed for final hearing on 22 and 23 April 2013.

22. There be liberty to apply on 3 days notice.

IT IS NOTED that publication of this judgment under the pseudonym Neave & Kane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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