Scanlan and Donald - [2009] FMCAfam 1448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCANLAN & DONALD

[2009] FMCAfam 1448

FAMILY LAW – Children – final arrangements for care of children aged 8, 6 and 5 – serious issues of violence and drug abuse – children independently represented – both parties are Aboriginal – considerations of the children’s cultural background – both parties recently sentenced to immediate terms of imprisonment – father and children live in [B] – mother living in [L] on parole – mother wishes children to live with her in [L] – potential effect of this change on children – how children can be protected from harm – best interests.

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

Davis v Davis (2007) 38 Fam LR 671
B & R and the Separate Representative (1995) FLC 92-636
In the Marriage of Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 19 Fam LR 255

Applicant:

MR SCANLAN

Respondent:

MS DONALD

File Number:

ADC 2540 of 2008

Judgment of:

Brown FM

Hearing dates:

23 & 24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

[B]Broken Hill

Delivered on:

25 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Burton

Solicitors for the Applicant:

Doyle, Kingston & Swift

Counsel for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Du Barry

Solicitor for the Independent Children’s Lawyer:

Legal Services Commission

ORDERS

The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 2001 and [Y] born [in] 2003 and [Z] born [in] 2004 (hereinafter referred to as “the children”).
The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
The children live with the father in [B].
The mother spend time with the children as follows:
(a)For four consecutive weeks during each end of year New South Wales school holiday so that Christmas Eve, Christmas Day and Boxing Day fall into such four week period in alternate years commencing with the Christmas period of 2009 but also providing that the mother is to return the children to the father at least two days prior to the commencement of school in each year;
(b)For one week during each of the autumn (April), winter (July) and spring (October) New South Wales school holiday period provided that the mother return the children to the father’s care two days prior to the date on which school is scheduled to recommence and the children spend the four days of Easter with each of their parents in alternate years commencing…

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 Scanlan and Donald

Details

AGLC: Scanlan and Donald [2009] FMCAfam 1448
Case: [2009] FMCAfam 1448
Decision Date: 25 November 2009

CaseChat Overview and Summary

The matter of Scanlan and Donald was brought before the Family Court of Australia to resolve disputes concerning the parenting arrangements for their three children, born in 2001, 2003, and 2004. The court was tasked with determining the allocation of parental responsibility, the specific time to be spent by the children with each parent, and the communication protocols between the parents and children.

The primary legal issues addressed by the court included the division of parental responsibilities, the specific schedule for the children’s time with each parent, and the parameters for communication and consultation between the parents. The court had to consider the best interests of the children, taking into account their age, the need for stability, and the importance of both parents being involved in their lives.

The court ruled that the parents would share equal parental responsibility for the children, necessitating that they consult each other on major long-term issues. The children were to reside primarily with the father in a specified location. The court established a detailed schedule for the mother's visitation, including specific periods during school holidays and designated weekends. The court also mandated regular telephone communication and outlined procedures for the exchange of children and communication between parents and children. Additionally, the court emphasized the importance of both parents facilitating and encouraging communication between the children and the other parent, while prohibiting any form of denigration or abuse between the parents in the presence of the children.

The final orders included provisions for shared parental responsibility, detailed visitation schedules, communication protocols, and specific obligations for both parents to ensure the children’s welfare and maintain a positive relationship between the parents. The court dismissed the appointment of an independent children’s lawyer and all other outstanding applications.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 2001 and [Y] born [in] 2003 and [Z] born [in] 2004 (hereinafter referred to as “the children”).

The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.

The children live with the father in [B].

The mother spend time with the children as follows:

(a) For four consecutive weeks during each end of year New South Wales school holiday so that Christmas Eve, Christmas Day and Boxing Day fall into such four week period in alternate years commencing with the Christmas period of 2009 but also providing that the mother is to return the children to the father at least two days prior to the commencement of school in each year;

(b) For one week during each of the autumn (April), winter (July) and spring (October) New South Wales school holiday period provided that the mother return the children to the father’s care two days prior to the date on which school is scheduled to recommence and the children spend the four days of Easter with each of their parents in alternate years commencing with the children spending the Easter period in 2010 with the mother;

(c) In [B] for up to three weekends of each school term on the mother giving seven (7) days notice to the father of her intention to visit [B] on which occurrence the mother is to spend from after school on Friday until the commencement of school the following Monday with the children;

(d) On the weekend of Mother’s Day each year at times to be agreed between the parties and failing agreement to be in [B] between 9:00am on Saturday until 6:00pm the following Sunday provided the mother is in [B]; and

(e) At any other times and conditions as agreed between the parties from time to time.

The mother have telephone communication with the children each Tuesday and Saturday at 6:00pm (Eastern Australian time) with the mother to contact the children on the father’s landline (number omitted) or such other number as is agreed between the parties with the father to take all reasonable steps to ensure that the children are available to take the mother’s call.

For the purposes of the children spending time with the mother pursuant to order (4) hereof the parties are to exchange the children at the [L] Post Office, New South Wales or any other such location in [L] or elsewhere as may be agreed between the parties.

The mother may communicate with the children at all reasonable times in writing by letter or email.

Each party is to keep the other informed of his or her residential address, mobile telephone number, home and work telephone number and inform the other forthwith of any changes in such details.

Each parent is at liberty to attend the children’s school or kindergarten from time to time and to take part in any activities, including parent teacher nights, which are routinely attended by parents.

10.

Both the mother and father encourage and facilitate the children’s communication with the other parent by way of telephone calls and written correspondence in the event that any of the children request to communicate with that parent either in writing, by telephone or in some other electronic form.

11.

Both the father and the mother do all things necessary to:-

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

(b) permit the children to attend with the other parent in the event of a funeral involving a family member or close relative of one of the children’s parents;

(c) inform the other of all medical practitioners with whom the children consult and each of them authorise the other parent be able to make any reasonable inquiries of such medical practitioners attended by the children in respect of matters concerning the health of each of the children;

(d) to authorise, if necessary, the attendance of the other parent at any extracurricular activities undertaken by the children.

12.

The father do all things necessary to authorise the principal of each school attended by the children to forward to the mother copies of each child’s school report and any other school notice pertaining to any of the children together with an order form for each of the children’s school photographs.

13.

That each party be restrained and an injunction issue restraining each of them from denigrating or abusing the other in the presence or hearing of the children or permitting any other person to abuse or denigrate the other in the presence or hearing of the children.

14.

The appointment of the independent children’s lawyer be dismissed.

15.

All outstanding applications be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.