Otto and Kaleb - [2011] FamCA 1090

FAMILY COURT OF AUSTRALIA

OTTO & KALEB

[2011] FamCA 1090

FAMILY LAW – CHILDREN – With whom child should live – With whom child shall spend time – Where child lived primarily with father for most of her life – Where child has recently spent equal time with each parent – Where mother seeks order that child live primarily with her – Where allegations by mother of family violence by the father – Where child has missed significant amounts of school whilst in father’s care – Whether living primarily with the mother is in the child’s best interests.

Family Law Act 1975 (Cth)

B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) 42 Fam LR 559
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
M & M (1988) FLC 91-979
Marsden & Winch (No 3) [2007] FamCA 1364
MRR v GR (2010) 240 CLR 461
Mulvany v Lane (2009) FLC 93-404
Sigley & Evor (2011) 44 Fam LR 439

APPLICANT:

Ms Otto

RESPONDENT:

Mr Kaleb

FILE NUMBER:

BRC

4123

2010

DATE DELIVERED:

28 October 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 – 16 September 2011

REPRESENTATION

FOR THE APPLICANT:

Mr Kaleb in person

COUNSEL FOR THE RESPONDENT:

Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT:

Michelle Porcheron Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT:

The father and the mother shall have equal shared parental responsibility for the child B born … 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
The parties shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Live/spend time with

Save as otherwise specified in these Orders, the child shall live and spend time with the parents as agreed between the parents, or failing agreement:
(a)with the father:
(i)on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;
(ii)for the first half of all Queensland gazetted school holiday periods;
(iii)should the following days occur during a period when the child is living with the mother:
A.on Father’s Day from 9.00am to 5.00pm;
B.on the father’s birthday:
(1)from 9.00am to 5.00pm if the birthday falls on a weekend
(2)from 3.00pm to 7.00pm if the birthday occurs on a weekday.
(iv)for Christmas school holiday periods:
A. from the end of the school term until 9.00pm on Christmas Eve;
B.from 3 weeks after Christmas Eve until the end of the school holidays.
(b) with the mother:
(i)on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;
(ii)for the first…

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 Otto and Kaleb

Details

AGLC: Otto and Kaleb [2011] FamCA 1090
Case: [2011] FamCA 1090
Decision Date: 28 October 2011

CaseChat Overview and Summary

This matter concerned parenting orders sought by the father and mother in relation to their child, B. The proceedings were before Murphy J of the Family Court of Australia.

The court was required to determine the terms of parenting orders concerning the child's residence, time spent with each parent, and parental responsibility for decision-making, particularly in relation to major long-term issues. The court also needed to address communication between the parents and the child, as well as the practical arrangements for school attendance and changeovers.

Murphy J made orders for equal shared parental responsibility for major long-term issues, with each parent having sole responsibility for day-to-day matters. The child was to live with and spend time with each parent on an alternating weekly cycle, with specific provisions for school holidays, birthdays, and other significant dates. The court also ordered that parents facilitate communication with the child and each other regarding the child's health, education, and welfare. Specific arrangements were made for the school to report on attendance and any issues to a family consultant and both parents. All other parenting applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT:

The father and the mother shall have equal shared parental responsibility for the child B born … 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).

The parties shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Live/spend time with

Save as otherwise specified in these Orders, the child shall live and spend time with the parents as agreed between the parents, or failing agreement:

(a) with the father:

(i) on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;

(ii) for the first half of all Queensland gazetted school holiday periods;

(iii) should the following days occur during a period when the child is living with the mother:

A. on Father’s Day from 9.00am to 5.00pm;

B. on the father’s birthday:

(1) from 9.00am to 5.00pm if the birthday falls on a weekend

(2) from 3.00pm to 7.00pm if the birthday occurs on a weekday.

(iv) for Christmas school holiday periods:

A. from the end of the school term until 9.00pm on Christmas Eve;

B. from 3 weeks after Christmas Eve until the end of the school holidays.

(b) with the mother:

(i) on an alternating weekly cycle, coinciding with the existing cycle, from after school Monday to before school the following Monday, and each alternate week thereafter;

(ii) for the first half of all Queensland gazetted school holiday periods;

(iii) should the following days occur during a period when the child is living with the father:

A. on Mother’s Day from 9.00am to 5.00pm;

B. on the mother’s birthday:

(1) from 9.00am to 5.00pm if the birthday falls on a weekend

(2) from 3.00pm to 7.00pm if the birthday occurs on a weekday.

(iv) for Christmas school holiday periods:

A. from the end of the school term until 9.00pm on Christmas Eve;

B. from 3 weeks after Christmas Eve until the end of the school holidays.

Changeovers

Changeover in respect of all periods of time shall be affected as agreed between the parents, provided the agreed location is not the child’s school or, failing agreement:

(a) At the McDonald’s restaurant closest to the child’s school.

Communication

The parties shall do all things as might reasonably be necessary to facilitate the child communicating with the parent with whom they are not residing at all such reasonable times, and via such means, as the child might reasonably request from time to time.

Each party shall do all such things and sign all such documents as may be necessary or required to:

(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the child consults;

(b) To speak to, and receive oral or written communication from, any school or other educational institution attended by the child;

(c) Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the child, and to permit attendance at, and reasonable participation in, any such activities;

(d) Keep the other parent appraised of their residential address and telephone contact number;

(e) Notify the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

School Attendance

Both parties sign all such documents or authorities and pay equally any such reasonable fee as might be required so as to each and together request and direct the principal of the C School (or such other school as the parties shall agree that the child attends) for a period of two whole school years after the date of these orders to:

(a) Provide at the end of each month to Ms D, Family Consultant, a list of:

i) any occasions upon which the child was delivered or collected late from school;

ii) any reasons advanced by the mother or father (as the case may be) for any such late delivery or collection;

iii) any absence from school by the child;

iv) the reason for any such absence advanced by the mother or father (as the case may be); and

v) any correspondence forwarded by the said principal to the mother, father or both relating to the late delivery or collection of the child from school or any absences; and

(b) Provide contemporaneously a copy of the said list and any such correspondence to each of the mother and father.

Dismissal of Other parenting Applications

All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Publication of Orders

In order to give better effect to these orders, an order will be made pursuant to s 129(g) of the Act that an account of these proceedings be authorised for publication to the school principal, namely a copy of the orders made herein and my reasons for judgment.

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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