Parker and Brown - [2010] FMCAfam 911

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARKER & BROWN

[2010] FMCAfam 911

FAMILY LAW – Parenting – children – reliability and stability of Mother’s actions in issue – significant geographical distance between parental homes – admissibility of previous judgment of Court – principles of admissibility of report not ordered by the Court.

Evidence Act 1995, ss.91, 157 and 190
Family Law Act 1975, Part VII, ss.60B(1) (a), (c), (d), (2), (a), (b), (c), (d), (e), 60CA, 60CC(1), (a), (2), (b) (3) (b) (i), (ii), (c), (i), (j), (k), (4), (4A), 61DA (1), 65AA, 65DAA(1) (a) & (b) (2), (3), (5) (b), (c), 69ZT

Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
McCall & Clark (2009) 41 Fam LR 483
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶ 93-375
MRR v GR (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC¶93-424
SPS v PLS (2008) FLC ¶93 363
Cross on Evidence (Eighth Australian Edition) (J.D. Heydon) (Sydney: Lexis Nexis Butterworths, 2010)

Applicant:

MR PARKER

Respondent:

MS BROWN

File Number:

CAC 443 of 2009

Judgment of:

Neville FM

Hearing dates:

4 & 5 February 2010

Date of Last Submission:

24 February 2010

Delivered at:

Canberra

Delivered on:

23 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr I Nash SC

Solicitors for the Applicant:

Phelps Reid, Canberra

Counsel for the Respondent:

Mr P Davies

Solicitors for the Respondent:

Independent Children’s Lawyer

Byrnes & Cox, Port Macquarie

Mr D Ridge
Barker & Barker, Canberra

ORDERS

The mother and the father have equal shared parental responsibility for the children, [X] (born in 2004), [Y] (born in 2005) and [Z] (born in 2007) (“the children”).
The children reside with the Father.
Unless otherwise agreed by the parties in writing, if the Mother remains living outside of the Canberra region, the children spend time with the Mother as follows:
(a)In Canberra for one period each month from Wednesday after school/childcare at 3:00pm until the commencement of school/childcare the following Monday. If the weekend is a long weekend, then the children shall spend time with the Mother until the Tuesday;
(b)For one half of all ACT school holiday periods commencing in 2010 for the first half of all school holiday periods and each alternate year thereafter and commencing in 2011 for the second half of all school holiday periods and each alternate year thereafter;
(c)School holiday time will commence at 12 noon on the Saturday after the last day of the school term and will cease on the Saturday prior to the new school term at 12 noon and will be for the period in each school term holiday for a seven day period until Saturday at 12 noon and in respect of the December/January school holiday period for a three week period commencing at 12noon on the first Saturday of the school holidays and conclude on…

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 Parker and Brown

Details

AGLC: Parker and Brown [2010] FMCAfam 911
Case: [2010] FMCAfam 911
Decision Date: 23 March 2010

CaseChat Overview and Summary

The case of Parker and Brown involved the parents of three children, [X], [Y], and [Z], with the dispute centering on their parenting arrangements post-separation. The matter was heard and determined in the Family Court of Australia. The father sought a change in the current parenting arrangements, arguing that they were not in the best interests of the children, while the mother opposed the changes, maintaining that the existing arrangements were suitable.

The court was tasked with determining whether the current parenting arrangements were in the best interests of the children and, if not, what alternative arrangements should be put in place. The primary consideration was the welfare and needs of the children, with both parties presenting evidence regarding their ability to care for the children and the impact of the proposed changes on the children's lives.

In reaching its decision, the court weighed the evidence presented by both parties and considered expert opinions on child development and parenting. The court acknowledged the importance of stability and continuity in the children's lives, particularly given their young ages. After careful consideration, the court determined that equal shared parental responsibility was in the children's best interests, with the children residing primarily with the father. The court outlined specific visitation arrangements for the mother, depending on her place of residence, and detailed provisions for handovers, special occasions, and communication between the non-resident parent and the children. Additionally, the court mandated that both parents undertake a post-separation parenting course.

The court's final orders reflect a balanced approach that seeks to accommodate the needs and welfare of the children while recognising the roles of both parents in their lives. The orders ensure that the children have meaningful and regular contact with both parents, promoting a stable and supportive environment for their ongoing development.

Orders

Orders of the court

The mother and the father have equal shared parental responsibility for the children, [X] (born in 2004), [Y] (born in 2005) and [Z] (born in 2007) (“the children”).

The children reside with the Father.

Unless otherwise agreed by the parties in writing, if the Mother remains living outside of the Canberra region, the children spend time with the Mother as follows:

(a) In Canberra for one period each month from Wednesday after school/childcare at 3:00pm until the commencement of school/childcare the following Monday. If the weekend is a long weekend, then the children shall spend time with the Mother until the Tuesday;

(b) For one half of all ACT school holiday periods commencing in 2010 for the first half of all school holiday periods and each alternate year thereafter and commencing in 2011 for the second half of all school holiday periods and each alternate year thereafter;

(c) School holiday time will commence at 12 noon on the Saturday after the last day of the school term and will cease on the Saturday prior to the new school term at 12 noon and will be for the period in each school term holiday for a seven day period until Saturday at 12 noon and in respect of the December/January school holiday period for a three week period commencing at 12noon on the first Saturday of the school holidays and conclude on the Saturday three weeks later.

(d) That in the event that the Mother is in Canberra then such times as may be agreed, providing the Mother gives the Father seven days notice of her intention to spend time with the children during this time.

Unless otherwise agreed by the parties in writing, if the Mother resides in the Canberra region, the children will live with the Mother and the Father on an equal shared care basis.

Notwithstanding any other Orders the children shall spend from 9.00am to 5.00pm with the Father on Father’s Day and from 9.00am to 5.00pm on Mother’s Day with the Mother in Canberra.

The parent with whom the children are not residing shall have telephone time with the children each Wednesday, Friday and Sunday between 6.00pm and 7.00pm.

All handovers in respect of the children are to occur at an agreed location approximately halfway between each parties’ residence, except when the Mother spends time with the children in Canberra, in which case she will collect the children from the Father’s residence and return the children to the Father’s residence or otherwise in accordance with these Orders.

The parties are to take all steps necessary to enrol in a post-separation parenting course within 28 days of the date of 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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