Newman and Newman - [2010] FMCAfam 313

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEWMAN & NEWMAN

[2010] FMCAfam 313

FAMILY LAW – Equal shared parental responsibility – Equal time – insufficient certainty as to parents and children’s future circumstances to make a defined order as to which school the children should attend.

Family Law Act 1975, ss.60 CC (2), (3) (4)

Applicant:

MS NEWMAN

Respondent:

MR NEWMAN

File Number:

PAC 2765 of 2009

Judgment of:

Dunkley FM

Hearing date:

15 March 2010

Date of Last Submission:

15 March 2010

Delivered at:

Parramatta

Delivered on:

16 April 2010

REPRESENTATION

Applicant Mother in Person

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

All previous parenting Orders be discharged.
The parties shall have equal shared parental responsibility for the children, X, born (omitted) 2006 and Y born (omitted) 2008 subject to Order 3.
The children shall be enrolled at and attend a school as agreed by the parties and failing agreement, as selected by the Mother.
The children shall live with the Father:
(a)During school term time in:
(i)Week One from 8am Wednesday to 8am Friday, commencing in the first week of each school term and each alternate week thereafter; and
(ii)Week Two from 8am Wednesday to 5pm Monday, commencing in the second week of each school term and each alternate week thereafter;
(b)On Father’s Day, if that is not already a period that they are spending with the Father, from 9am to 5pm;
(c)On each of the children’s birthdays, if they are not already spending time with the Father for a period of three hours, from 4pm to 7pm;
(d)From 10am Good Friday to 5pm Easter Sunday in each year ending in an even number and from 5pm Easter Saturday to 5pm Easter Monday in each year ending in an odd number;
(e)From 9am Christmas Eve to 12noon Christmas Day in each year ending in an odd number and from 12noon Christmas Day to 5pm Boxing Day in each year ending in an even number;
(f)For the first half of each of the school holidays at the end of Term One, Two and Three, subject to the order for the Easter period as set out above;
(g)For the 2010/2011 and 2011/2012 Term 4 school holiday for a ten day block period as nominated by the Father, provided that not less than 28 days written notice is given to the Mother. Subject to orders 5(e) and 5(g) the remainder of the holiday to be divided equally by agreement;
(h)Commencing 2012/2013 and each year thereafter, for the first half of the Term 4 school holidays, subject to order 5 (e);
(i)For a period of two hours on the Father’s birthday as agreed and failing agreement from 5pm to 7pm; and
(j)At such other times as the parties agree.
The children shall live with the Mother:
(a)During school term time in:
(i)Week One from 8am Friday to 8am Wednesday commencing in the first week of each school term and each alternate week thereafter; and
(ii)Week Two…

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 Newman and Newman

Details

AGLC: Newman and Newman [2010] FMCAfam 313
Case: [2010] FMCAfam 313
Decision Date: 16 April 2010

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Newman and Newman was heard, involving a dispute between the parents, Mr. and Mrs. Newman, regarding the parenting arrangements for their two children, X and Y. The court was tasked with determining a parenting plan that would provide for the children's best interests, considering the parents' differing views on custody and the children's need for stability and equal access to both parents. The legal issues centered around the allocation of parental responsibility, the specific time-sharing arrangements, and the need for clear guidelines to manage the children's living arrangements and contact with both parents. The court had to balance the parents' wishes with the children's welfare, ensuring that the orders facilitated a healthy relationship with both parents.

The court deliberated on the evidence presented by both parties and the welfare of the children, ultimately concluding that a detailed and structured parenting plan was necessary. The court determined that equal shared parental responsibility was in the children's best interests, allowing both parents to contribute significantly to their upbringing. The detailed time-sharing arrangements were designed to provide the children with a stable routine while ensuring they spend sufficient time with both parents, including specific provisions for holidays, special occasions, and school terms. The court also emphasized the importance of communication and cooperation between the parents, outlining specific requirements for contact and information sharing to maintain the children's connection with both households.

Following the court's reasoning, the orders reflect a comprehensive plan that discharges previous parenting orders and establishes new arrangements for the children's care, contact, and education. The children will live with each parent on a rotating basis, with detailed schedules for school terms, holidays, and special days. Both parents are required to keep each other informed of any significant changes or issues affecting the children. The orders also include provisions for the children's education, health, and extracurricular activities, ensuring that both parents have a say in these important areas. The final orders aim to provide a stable and supportive environment for the children, facilitating their relationship with both parents while prioritizing their welfare and best interests.

Orders

Orders of the court

All previous parenting Orders be discharged.

The parties shall have equal shared parental responsibility for the children, X, born (omitted) 2006 and Y born (omitted) 2008 subject to Order 3.

The children shall be enrolled at and attend a school as agreed by the parties and failing agreement, as selected by the Mother.

The children shall live with the Father:

(a) During school term time in:

(i) Week One from 8am Wednesday to 8am Friday, commencing in the first week of each school term and each alternate week thereafter; and

(ii) Week Two from 8am Wednesday to 5pm Monday, commencing in the second week of each school term and each alternate week thereafter;

(b) On Father’s Day, if that is not already a period that they are spending with the Father, from 9am to 5pm;

(c) On each of the children’s birthdays, if they are not already spending time with the Father for a period of three hours, from 4pm to 7pm;

(d) From 10am Good Friday to 5pm Easter Sunday in each year ending in an even number and from 5pm Easter Saturday to 5pm Easter Monday in each year ending in an odd number;

(e) From 9am Christmas Eve to 12noon Christmas Day in each year ending in an odd number and from 12noon Christmas Day to 5pm Boxing Day in each year ending in an even number;

(f) For the first half of each of the school holidays at the end of Term One, Two and Three, subject to the order for the Easter period as set out above;

(g) For the 2010/2011 and 2011/2012 Term 4 school holiday for a ten day block period as nominated by the Father, provided that not less than 28 days written notice is given to the Mother. Subject to orders 5(e) and 5(g) the remainder of the holiday to be divided equally by agreement;

(h) Commencing 2012/2013 and each year thereafter, for the first half of the Term 4 school holidays, subject to order 5 (e);

(i) For a period of two hours on the Father’s birthday as agreed and failing agreement from 5pm to 7pm; and

(j) At such other times as the parties agree.

The children shall live with the Mother:

(a) During school term time in:

(i) Week One from 8am Friday to 8am Wednesday commencing in the first week of each school term and each alternate week thereafter; and

(ii) Week Two from 5pm Monday to 8am Wednesday, commencing in the second week of each school term and each alternate week thereafter;

(b) On Mother’s Day, if that is not already a period that they are spending with the Mother, from 9am to 5pm;

(c) On each of the children’s birthdays, if they are not already spending time with the Mother for a period of three hours, from 4pm to 7pm;

(d) From 10am Good Friday to 5pm Easter Sunday in each year ending in an odd number and from 5pm Easter Saturday to 5pm Easter Monday in each year ending in an even number;

(e) From 9am Christmas Eve to 12noon Christmas Day in each year ending in an even number and from 12noon Christmas Day to 5pm Boxing Day in each year ending in an odd number;

(f) For the second half of each of the school holidays at the end of Term One, Two and Three, subject to the order for the Easter period as set out above;

(g) For the 2010/2011 and 2011/2012 long term school holiday for a ten day block period as nominated by the Mother, provided that not less than 28 days written notice is given to the Father. Subject to orders 4 (e) and 4 (g), the remainder of the holiday period to be divided equally;

(h) Commencing 2012/2013 and each year thereafter, for the second half of the long terms school holidays subject to Order 4 (e);

(i) For a period of two hours on the Mother’s birthday as agreed and failing agreement from 5pm to 7pm;

(j) From 9am 19 April 2010 until 8am 21 April 2010; and

(k) At such other times as the parties agree.

Each party shall advise the other party as soon as reasonably practicable of any major medical issues involving the children when the children are in that parties care and shall keep the other party properly informed of any required treatment or medication in relation to the children and shall authorise the provider of that treatment to discuss that treatment with the other party.

Each party shall keep the other advised of their current residential address, landline telephone number, mobile telephone number and email address.

Each party shall notify the other party of the address and contact telephone number for the children during any school holiday period if the children are not staying at the parent’s usual place of residence.

The parent with whom the children are living with at any period shall place a telephone call to the other parents landline between 5pm and 7pm each day and shall do all that they can to encourage the children to have telephone communication with the other parent.

10.

Nether parent shall denigrate the other parent or any member of the other parents household in the presence or hearing of the children and shall cause the children to be removed from the presence or hearing of any other person who engages in such denigrating behaviour.

11.

Each parent shall authorise any day-care provider or school at which the children are enrolled to discus with the other parent the children’s attendance, attainments and development.

12.

Each party shall be entitled to attend at any day-care provider or school at which the children are enrolled so as to participate in events at which parents are entitled to attend.

13.

Apart from school enrolment, and not including any existing day-care or preschool enrolment, neither party shall enrol or register the children in any activity which will affect the time that the children spend with the other parent, without that parent’s written consent.

14.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

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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