ROSE & ROSE - [2010] FMCAfam 241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROSE & ROSE

[2010] FMCAfam 241

FAMILY LAW – Parenting – equal shared parental responsibility – whether mother should have sole parental responsibility for all decisions concerning children’s medical and psychological matters – substantial and significant time – family report – meaningful relationship – children’s views.

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65DAA, 65DAC

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285
In the Marriage of Wood (1976) 2 Fam LR 11,182
Lindell v Ranteri [2010] FamCA 52
Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MR ROSE

Respondent:

MS ROSE

File Number:

SYC 1586 of 2008

Judgment of:

Monahan FM

Hearing date:

13 January 2010

Date of Last Submission:

3 February 2010

Delivered at:

Sydney

Delivered on:

6 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Johnston

Solicitors for the Applicant:

Moylan Family Lawyers

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Fox & Staniland

Counsel for the Independent Children’s Lawyer:

Ms Falloon

Solicitors for the Independent Children’s Lawyer

Legal Aid NSW

ORDERS

All previous orders are discharged.
MR ROSE (“the father”) and MS ROSE (“the mother”) have equal shared parental responsibility for [X] born [in] 1997, [Y] born [in] 2000, and [Z] born [in] 2001 (“the children”).
The children live with the mother when not spending time with the father pursuant to these orders.
Unless otherwise agreed in writing between the parties, the children spend time with the father as follows:
(a)Commencing 6 August 2010, during school terms:
(i)each alternate weekend, from the conclusion of school Friday (or 9:00am if a non-school day) until 5:00pm on Sunday; and
(ii)each Wednesday, from after school (or 3:30pm if a non-school day) until 7:30pm;
(b)during school holidays:
(i)in the December-January school holiday period (“the summer holidays’) for two non-consecutive periods of five days and four nights (“the two periods”) as agreed or, failing agreement, the father nominate the two periods for the summer holidays commencing in December 2010 and each alternate year thereafter and the mother nominate the two periods for the summer holidays commencing in December 2011 and each alternate year thereafter; and
(ii)in each of the school term holidays for one period of five days and four nights (“the period”) as agreed or, failing agreement, the mother nominate the period for school term holidays in 2010 and each alternate year thereafter and the father nominate the period for school term holidays in 2011 and each alternate year thereafter;
and
(c)where not otherwise provided for by these orders, the children spend time with the father:
(i)on Fathers’ Day each year from 9:00am until 5:00pm;
(ii)on each of the children’s birthdays from after school until 7:30pm on school days or if a non-school day then from 9:00am until 2:00pm in 2010 and each alternate year thereafter and from 2:00pm until 7:30pm in 2011 and each…

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 ROSE & ROSE

Details

AGLC: ROSE & ROSE [2010] FMCAfam 241
Case: [2010] FMCAfam 241
Decision Date: 6 August 2010

CaseChat Overview and Summary

Rose & Rose involved a dispute between the parents of three children over parenting arrangements. The father sought sole parental responsibility for all decisions concerning the children's medical and psychological matters, while the mother argued for equal shared parental responsibility. The Family Court was tasked with determining the appropriate parenting arrangements for the children, considering factors such as the children's best interests, their views, and the substantial and significant time each parent spent with them. The court also had to assess the meaningful relationship each parent had with the children and the quality of the relationship between the children and each parent.

The court found that both parents had a meaningful relationship with the children and that the children had substantial and significant time with each parent. The court determined that equal shared parental responsibility was in the children's best interests, and that the mother should have sole parental responsibility for all decisions concerning the children's medical and psychological matters. The court considered the children's views, the family report, and the parents' ability to provide for the children's needs. The court also found that the father's application for sole parental responsibility for medical and psychological decisions was not in the children's best interests.

The court made orders for equal shared parental responsibility for the children, with the children living with the mother when not spending time with the father. The court set out detailed arrangements for the children's time with the father, including specific periods during school terms and holidays. The court also made orders for communication between the parties, supervision of the children, and the exchange of information about the children's needs. The court noted that the Independent Children's Lawyer's application for costs would be adjourned, and that all other applications except for the costs application were dismissed. The court emphasised that the orders were made in the children's best interests, and that both parents had a meaningful relationship with the children.

Orders

Orders of the court

All previous orders are discharged.

MR ROSE (“the father”) and MS ROSE (“the mother”) have equal shared parental responsibility for [X] born [in] 1997, [Y] born [in] 2000, and [Z] born [in] 2001 (“the children”).

The children live with the mother when not spending time with the father pursuant to these orders.

Unless otherwise agreed in writing between the parties, the children spend time with the father as follows:

(a) Commencing 6 August 2010, during school terms:

(i) each alternate weekend, from the conclusion of school Friday (or 9:00am if a non-school day) until 5:00pm on Sunday; and

(ii) each Wednesday, from after school (or 3:30pm if a non-school day) until 7:30pm;

(b) during school holidays:

(i) in the December-January school holiday period (“the summer holidays’) for two non-consecutive periods of five days and four nights (“the two periods”) as agreed or, failing agreement, the father nominate the two periods for the summer holidays commencing in December 2010 and each alternate year thereafter and the mother nominate the two periods for the summer holidays commencing in December 2011 and each alternate year thereafter; and

(ii) in each of the school term holidays for one period of five days and four nights (“the period”) as agreed or, failing agreement, the mother nominate the period for school term holidays in 2010 and each alternate year thereafter and the father nominate the period for school term holidays in 2011 and each alternate year thereafter;

and

(i) on Fathers’ Day each year from 9:00am until 5:00pm;

(ii) on each of the children’s birthdays from after school until 7:30pm on school days or if a non-school day then from 9:00am until 2:00pm in 2010 and each alternate year thereafter and from 2:00pm until 7:30pm in 2011 and each alternate year thereafter;

(iii)

from 3:00pm on 24 December until 3:00pm on

25 December in 2010 and each alternate year thereafter; and

(iv)

from 3:00pm on 25 December until 3:00pm on

26 December in 2011 and each alternate year thereafter.

Order 4 herein be suspended as necessary for the children to spend time with the mother from 10:00am on each Mother’s Day.

Unless otherwise agreed in writing between the parties, the father collect the children from school or the mother’s residence at the commencement of the children’s times with him, and the mother collect the children from the father’s residence at the conclusion of the children’s time with him.

Each party do everything reasonably necessary to ensure that the children have telephone communication with the other party:

(a) during school terms, on Tuesdays and Thursdays at times convenient to the children in accordance with their extra-curricular activities;

(b) at any time during school holidays between 6:00pm and 8:00pm; and

Each party be permitted to attend at all extra-curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.

Neither party denigrate the other in the presence or within the hearing of the children or permit any other person to do so.

10.

In the event that either party proposes to travel with the children more than 100 kilometres from that party’s home then, not less than seven (7) days prior to the intended date of travel, that party advise the other party in writing as to:

(a) flight times and dates if relevant;

(b) the proposed destination;

(d) all details necessary for the other parent to maintain telephone contact with the children.

11.

Each party do all things necessary to ensure that the children:

(a) take any medication prescribed by a doctor at the required times and in the prescribed doses;

(b) adhere to dietary recommendations of a doctor or dietician which are particular to any or all of the children; and

(c) obtain such assistance for their medical and dental health and general well-being as is recommended by treating professionals.

12.

The mother forthwith purchase a book to be used for essential communication between the parties about the children’s needs, including but not limited to information about their extra-curricular activities and the matters set out in order 11 herein, and the book be exchanged between the parties each time the children move from the care of one party to the other, and at other times should there be a need for communication about such matters.

13.

Both parties ensure the children are appropriately supervised at all times, in particular when they are:

(a) in or near water; or

(b) using the internet.

14.

In the event that any or all of the children suffers illness or injury while in the care of a party, that party shall, as soon as is reasonably practicable, inform the other party of the nature of that illness or injury and provide particulars of treatment including, if relevant, details of any hospital or other emergency health facility caring for the child, and nothing in these orders shall prevent either party from being with the child at that time.

15.

Neither party shall telephone the other except about arrangements for the children within the next 48 hours, or if an emergency situation arises for any or all of the children.

16.

Each party shall advise the other of:

(a) any proposed change of his or her residence not less than seven (7) days prior to such change;

(b) any change to his or her landline or mobile telephone numbers; and

17.

If the parties are unable to reach agreement regarding the children’s long term care, welfare and development both parties participate in family dispute resolution counselling.

18.

Where used in these orders, “writing” shall be taken to include telephone text messages and emails.

19.

The Independent Children’s Lawyer’s application for costs (“the costs application”) be adjourned to 6 September 2010 at 9:30am.

20.

All extant applications except for the costs application be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and those 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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