Pilcher and Schneider - [2008] FMCAfam 1092

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PILCHER & SCHNEIDER

[2008] FMCAfam 1092

FAMILY LAW – Children aged 5½ and 2¾ – whether equal time arrangement likely to be both in children’s best interests and reasonably practicable – parties relationship characterised by mistrust and communication difficulties – impact on children of equal time arrangement – developmental issues – best interests.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Pilcher & Schneider [2007] FMCAfam 1163
Goode & Goode (2006) FLC 92-286
In the marriage of Patsalou (1994) 18 Fam LR 426
JG & BG 18 Fam LR 255
Stuart & Stuart [2008] FMCAfam 177
Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)

Applicant:

MR PILCHER

Respondent:

MS SCHNEIDER

File Number:

ADC 2591 of 2007

Judgment of:

Brown FM

Hearing dates:

11, 12, 22 & 26 August 2008

Date of Last Submission:

26 August 2008

Delivered at:

Adelaide

Delivered on:

13 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Cha Di Rosa Lawyers

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Adey Lawyers

ORDERS

The parties have equal shared parental responsibility for the children of the relationship [H] born in 2003 and [P] born in 2005.
The children live with the father as follows:
(a)Until the child [P] turns four years of age in December 2009:
(i)In alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);
(ii)In each other week from 5:00pm Wednesday until 8:00am the following Thursday;
(iii)At any other times as agreed between the parties or as specified in these orders.
(b)From December 2009 until January of 2011;
(i)In alternate weeks from 5:30pm on Wednesday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);
(ii)In each other week from 5:00pm Wednesday until 8:00am the following Thursday;
(iii)At any other times as agreed between the parties or as specified in these orders.
(c)Upon the child [P] commencing primary school in January of 2011 on an equal time basis with the children moving between their parent’s respective households on a week about basis.
The children live with the mother at all other times.
That notwithstanding the terms of paragraphs 2 and 3 herein, the mother and father do have the care of the children on special occasions as follows:-
(a)during each Christmas period:-
(i)with the mother in 2008 and each alternate year thereafter from 4pm on 24^th December to 3pm on 25^th December and in each intervening year from 3pm on 25^th December to 5.30pm on 26^th December;
(ii)with the father in 2008 and each alternate year thereafter from 3pm on 25^th December until 5.30pm on 26^th December and in each intervening year from 4pm on 24^th December to 3pm on 25^th December;
(b)during each Easter period as follows:-
(i)with the mother in 2009 and each alternate year thereafter from 5pm on Maundy Thursday to 5.30pm…

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 Pilcher and Schneider

Details

AGLC: Pilcher and Schneider [2008] FMCAfam 1092
Case: [2008] FMCAfam 1092
Decision Date: 13 October 2008

CaseChat Overview and Summary

In the matter of Pilcher and Schneider, the court addressed issues relating to the care, welfare, and access arrangements for the two children of the relationship. The parents, Pilcher and Schneider, were required to reach an agreement on various aspects of their children's upbringing, including residence, time-sharing, and special occasion care. The Family Court was tasked with determining the specific arrangements that would best serve the children's interests.

The primary legal issue before the court was to establish a parenting order that would provide a stable and balanced arrangement for the children's residence and care. The court had to consider the children's ages, their existing living arrangements, and the parents' respective roles in their upbringing. It was also necessary to address the parents' ability to cooperate and communicate effectively, as well as their capacity to meet the children's physical, emotional, and educational needs.

The court deliberated on the evidence presented by both parents and their respective experts, and it concluded that an equal shared parental responsibility arrangement would be in the best interests of the children. The court ordered that the children would primarily reside with the father but would spend alternate weeks with the mother. Special occasion care was also meticulously detailed, with specific times allocated for each parent during significant holidays and events. The court emphasized the importance of both parents encouraging and facilitating communication between the children and their other parent. Additionally, the court mandated that both parents complete recognised parenting and anger management courses and participate in a parenting program to foster a cooperative co-parenting relationship.

The court's final orders provided a detailed schedule for the children's residence and time-sharing, as well as specific provisions for special occasions, communication between parents, and the parents' responsibilities regarding the children's health and education. The orders aimed to ensure that both parents could actively participate in the children's lives while promoting their overall well-being and development.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children of the relationship [H] born in 2003 and [P] born in 2005.

The children live with the father as follows:

(a) Until the child [P] turns four years of age in December 2009:

(i) In alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);

(ii) In each other week from 5:00pm Wednesday until 8:00am the following Thursday;

(iii) At any other times as agreed between the parties or as specified in these orders.

(b) From December 2009 until January of 2011;

(i) In alternate weeks from 5:30pm on Wednesday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);

(ii) In each other week from 5:00pm Wednesday until 8:00am the following Thursday;

(iii) At any other times as agreed between the parties or as specified in these orders.

(c) Upon the child [P] commencing primary school in January of 2011 on an equal time basis with the children moving between their parent’s respective households on a week about basis.

The children live with the mother at all other times.

That notwithstanding the terms of paragraphs 2 and 3 herein, the mother and father do have the care of the children on special occasions as follows:-

(a) during each Christmas period:-

(i) with the mother in 2008 and each alternate year thereafter from 4pm on 24th December to 3pm on 25th December and in each intervening year from 3pm on 25th December to 5.30pm on 26th December;

(ii) with the father in 2008 and each alternate year thereafter from 3pm on 25th December until 5.30pm on 26th December and in each intervening year from 4pm on 24th December to 3pm on 25th December;

(b) during each Easter period as follows:-

(i) with the mother in 2009 and each alternate year thereafter from 5pm on Maundy Thursday to 5.30pm on Easter Saturday and in each intervening year from 5.30pm on Easter Saturday to 5.30pm on Easter Monday;

(ii) with the father in 2009 and each alternate year thereafter from 5.30pm on Easter Saturday until 5.30pm on Easter Monday and in each intervening year from 5.30pm on Maundy Thursday to 5.30pm on Easter Saturday;

(i) in the event of a child’s birthday occurring whilst the children are in the care of the father then in the event of the child’s birthday occurring on a school day or a child care day the children do be in the care of the mother for a period of not less than two hours commencing from the conclusion of school/child care or in the event that the birthday occurs on a weekend, Public Holiday or during a school holiday period then the children shall spend time with the mother from 2pm to 6pm;

(ii) in the event of a child’s birthday occurring whilst the children are in the care of the mother then if the child’s birthday occurs on a school day then the children do be in the care of the father for a period of not less than two hours commencing from the conclusion of school/child care or in the event that the birthday occurs on a weekend, Public Holiday or during a school holiday period then the children do spend time with the father from 2pm to 6pm;

(d) on Mother’s Day with the mother from 9am to 5pm;

(e) on Father's Day with the father from 9am to 5pm;

(f) at such other times as may be agreed between the parties including but not limited to time with each of the parents on special occasions such as family birthdays and celebrations.

That for the purposes of handovers, the father do collect the said children from the [M] Child Care Centre or the [K] Primary School, where appropriate, at the commencement of the father’s periods of care and the father do deliver the said children to the school, kindergarten or child care (as the case may be) at the conclusion of the father’s periods of care.

That each of the mother and the father do encourage and facilitate the children’s communication with the other parent by way of telephone calls and written correspondence in the event that the children’s request to do so.

That the parties do use and exchange at handovers a communication book to exchange information relating to all issues concerning the children’s care, welfare and development.

That each of the father and the mother do:-

(a) forthwith inform the other of any serious accident or illness of the children and in the event of a child requiring hospitalisation then each of the parents shall be entitled to visit the child in hospital;

(b) be responsible for any child care and out of hours school care fees incurred by that parent whilst the children are in that parent’s care;

(c) permit the children to attend with the other parent in the event of a funeral of a family member or close relative or friend;

(d) be entitled to attend at and participate in any extra-curricular activities of the children;

(e) inform the other of all medical practitioners with whom the children consult and each of them do authorise the other parent to make all reasonable inquiries of the said medical practitioners in respect to matters concerning the health of each of the children.

That the father do produce to the mother documentation as to proof of completion of:-

(a) a recognised parenting course;

(b) an anger management course and/or a prescribed domestic violence course for perpetrators of domestic violence;

upon completion of same.

10.

That the father and mother do participate in the Anglicare “Kids Are First” parenting program.

11.

All outstanding applications are otherwise dismissed.

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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