Redden and Mains - [2010] FMCAfam 1338

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDDEN & MAINS

[2010] FMCAfam 1338

FAMILY LAW – Parenting – time with orders – surname by which child is to be known – risk benefit analysis as to whether child is to be immunised.

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

Chapman & Palmer (1978) FLC 90-510
Beach and Stemmler (1979) FLC 90-692
Flanagan and Hancock (2001) FLC 93-074

Applicant:

MR REDDEN

Respondent:

MS MAINS

File Number:

PAC 4550 of 2009

Judgment of:

Dunkley FM

Hearing date:

16, 17 and 24 September 2010

Date of Last Submission:

24 September 2010

Delivered at:

Parramatta

Delivered on:

9 December 2010

REPRESENTATION

Solicitors for the Applicant:

G & D Lawyers

Counsel for the Respondent:

Ms Falloon

Solicitors for the Respondent:

Brian Samuel & Associates

ORDERS

That all previous parenting orders are discharged.
The parties shall have equal shared parental responsibility for [X] born [in] 2005.
[X] shall live with the mother.
[X] shall spend time with the father as follows:
(a)From the date of these orders until 26 January 2011:
(i)     Each Wednesday from 3pm to 7pm.
(ii)Each alternate weekend from 4pm Friday to 4pm Sunday, commencing the first Friday after these orders are made.
(iii)For one half of the December 2010 / January 2011 school holiday period on a week about basis: commencing at noon on Saturday 18 December 2010, and concluding at noon on 25 December 2010; commencing at noon on 1 January 2011 and concluding at noon on 8 January 2011; commencing at noon on 15 January 2011 and concluding at noon on 22 January 2011.
(b)From 26 January 2011 to 20 December 2011:
(i)During school term time, each alternate weekend from after school Friday to 6pm Sunday, commencing the second Friday of each school term.
(ii)For the first week of the school holidays at the end of Term 1, Term 2 and Term 3, commencing at 9am on the first Saturday, and concluding at 6pm on the middle Sunday.
(iii)On Father’s Day if she is not already spending time with her father, from 10am to 6pm.
(iv)   On [[X]’s birthday omitted] 2011 from the conclusion of school until 7pm.
(v)    At such other times as the parties agree.
(c)From 21 December 2011:
(i)During school term time, from after school Friday to 7.30am Monday each alternate weekend, commencing the second Friday of each school term.
(ii)For one half of each school holiday period at the end of Term 1, Term 2 and Term 3, being the second half in years ending in an even number commencing at 9am on the middle Monday, and concluding at 6pm on the last Sunday, and the first half in years ending in an odd number, commencing at 9am on the first Saturday and concluding at 6pm on the middle Sunday.
(iii)First half of school holidays at the end of Term 4 in odd numbered years, commencing at 9am on the day after the school term ends until 6pm on the middle day of the school holiday…

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 Redden and Mains

Details

AGLC: Redden and Mains [2010] FMCAfam 1338
Case: [2010] FMCAfam 1338
Decision Date: 9 December 2010

CaseChat Overview and Summary

This case involved a dispute between Redden and Mains over the parenting arrangements for their child, [X], born in 2005. The Family Court of Australia was tasked with determining the specific parenting orders that would best suit the child's welfare and future. The case revolved around the allocation of shared parental responsibility, the primary residence of the child, and the detailed schedule for the child's time with each parent.

The court was required to decide on several legal issues, including the principle of the child's best interests as the paramount consideration, the appropriateness of equal shared parental responsibility, and the development of a comprehensive time-sharing arrangement that balanced the needs of the child with the practicalities of both parents' lives. The court also needed to address specific requests regarding school holidays, special occasions, and the prevention of parental denigration.

In reaching its decision, the court emphasised the importance of providing [X] with a stable and supportive environment, while also ensuring that both parents had meaningful opportunities to participate in the child's life. The court concluded that equal shared parental responsibility was in the child's best interests, and that the mother should be the primary caregiver. The detailed time-sharing arrangement outlined in the orders was designed to provide a predictable and flexible schedule that allowed for both parents to have significant involvement in the child's daily life. The court also mandated specific measures to prevent parental denigration and to ensure open communication between the parents regarding the child's health, education, and other significant matters.

The final orders included the discharge of all previous parenting orders, the establishment of equal shared parental responsibility, the primary residence of the child with the mother, and a detailed schedule for the child's time with the father. The orders also included provisions for immunisation, communication between the parents, and the suspension of the father's time with the child on certain days. The case was listed for further directions concerning the child's immunisation obligations.

Orders

Orders of the court

That all previous parenting orders are discharged.

The parties shall have equal shared parental responsibility for [X] born [in] 2005.

[X] shall live with the mother.

[X] shall spend time with the father as follows:

(a) From the date of these orders until 26 January 2011:

(i) Each Wednesday from 3pm to 7pm.

(ii) Each alternate weekend from 4pm Friday to 4pm Sunday, commencing the first Friday after these orders are made.

(iii) For one half of the December 2010 / January 2011 school holiday period on a week about basis: commencing at noon on Saturday 18 December 2010, and concluding at noon on 25 December 2010; commencing at noon on 1 January 2011 and concluding at noon on 8 January 2011; commencing at noon on 15 January 2011 and concluding at noon on 22 January 2011.

(b) From 26 January 2011 to 20 December 2011:

(i) During school term time, each alternate weekend from after school Friday to 6pm Sunday, commencing the second Friday of each school term.

(ii) For the first week of the school holidays at the end of Term 1, Term 2 and Term 3, commencing at 9am on the first Saturday, and concluding at 6pm on the middle Sunday.

(iii) On Father’s Day if she is not already spending time with her father, from 10am to 6pm.

(iv) On [[X]’s birthday omitted] 2011 from the conclusion of school until 7pm.

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

(i) During school term time, from after school Friday to 7.30am Monday each alternate weekend, commencing the second Friday of each school term.

(ii) For one half of each school holiday period at the end of Term 1, Term 2 and Term 3, being the second half in years ending in an even number commencing at 9am on the middle Monday, and concluding at 6pm on the last Sunday, and the first half in years ending in an odd number, commencing at 9am on the first Saturday and concluding at 6pm on the middle Sunday.

(iii) First half of school holidays at the end of Term 4 in odd numbered years, commencing at 9am on the day after the school term ends until 6pm on the middle day of the school holiday period.

(iv) The second half of school holidays at the end of Term 4 in even numbered years, commencing at 6pm on the middle day of the school holiday period until 6pm on the day before the new school term begins.

(v) On Father’s Day, if that is not already a time that she is spending with the father, from 10am to 6pm.

(vi) On [[X]’s birthday omitted] from after school until 7pm, or if it is on a non-school day, from 3pm to 7pm.

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

The fathers time with [X] shall be suspended:

(a) On Mother’s Day from 10am to 6pm

(b) On [[X]’s birthday omitted] if she is otherwise spending time with him pursuant to Order 4(a)(ii) and Order 4(c)(i) from 3pm to 7pm.

To facilitate the spend time with Orders, the father shall collect [X] either from her school, or from the mother’s residence, as is appropriate, at the beginning of each period, and the mother shall collect [X] from the father’s residence at the end of each period.

Neither party shall denigrate the other party in the presence of hearing of [X], and so far as it reasonably possible, shall not allow [X] to be in the presence of any person who engages in such denigrative behaviour.

Each party shall keep the other party advised of any major or significant medical illness, any major or significant schooling issue, or any other issue of major or significant important in the child’s life.

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

10.

Notwithstanding Order 2 above, [X] shall be immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella and Papaloma Virus, with the appropriate number of doses as recommended by the Australia Government Department of Health and Aging.

11.

This case is listed for directions with respect to Order 10 above, at 9.30am on 16 December 2010.

12.

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.

These orders have been amended pursuant to Rule 16.05(2)(e) of the

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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