Simpson and Edwards - [2008] FMCAfam 1333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMPSON & EDWARDS

[2008] FMCAfam 1333

FAMILY LAW – Parenting orders – child been in shared care arrangement – competing “live with” applications – child has special educational needs – need for consistency – sole parental responsibility in child’s best interests – ordered live with Father who is to have sole parental responsibility.

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

Goode v Goode (2006) 36 Fam LR 422

Applicant:

MR SIMPSON

Respondent:

MS EDWARDS

File Number:

DGC 3186 of 2008

Judgment of:

Bender FM

Hearing dates:

8 & 9 December 2008

Date of Last Submission:

9 December 2008

Delivered at:

Melbourne

Delivered on:

17 December 2008

REPRESENTATION

Counsel for the Applicant:

Self Represented

Solicitors for the Applicant:

Self Represented

Counsel for the Respondent:

Self Represented

Solicitors for the Respondent:

Self Represented

Counsel for the Independent Children’s Lawyer:

Mr Hoult

Solicitors for the Independent Children’s Lawyer:

Marshalls & Dent

ORDERS

All previous parenting orders be discharged.
The Father have sole parental responsibility for the child of the relationship [Z] born in 2001 (“[Z]”).
[Z] live with her Father.
[Z] spend time and communicate with her Mother as follows:
(a)during school terms, each alternate weekend from after school Friday to 5.00 pm Sunday commencing 6 February 2009;
(b)from 9.00 am on 2 January 2009 to 5.00 pm on 4 January 2009;
(c)
from 9.00 am on 8 January 2009 to 5.00 pm on

10 January 2009
;
(d)
from 9.00 am on 21 January 2009 to 5.00 pm on

23 January 2009
;
(e)
for half the school term holidays commencing Term 1 2009 as agreed between the parties, and failing agreement, from

12.00 noon the first Saturday to 12.00 noon the second Saturday of the term holiday;
(f)for two separate weeks in the long summer vacation commencing in the 2009/2010 summer vacation as agreed between the parties and failing agreement the week commencing 2 January and the week commencing 19 January;
(g)
on the Mother’s Day weekend from after school Friday to

5.00 pm
Sunday;
(h)from 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter and from 5.00pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter;
(i)from after school until 6.30 pm on [Z]’s birthday, the Mother’s birthday or [X]’s birthday if they fall on a school day and from 10.30 am until 2.30 pm if they fall on a non-school day;
(j)
by telephone each Tuesday, Thursday and Sunday between

6.00 pm
and 6.30 pm with the Mother to call [Z] on a number provided by the Father to the Mother; and
(k)as otherwise agreed between the parties.
To avoid any confusion, the Mother’s time with [Z] pursuant to order 4(a) herein, is suspended during the school holidays and recommences on the first weekend of each school term.
In the event [Z] is with her Mother on the Father’s Day weekend, her time shall cease at 5.00 pm 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 Simpson and Edwards

Details

AGLC: Simpson and Edwards [2008] FMCAfam 1333
Case: [2008] FMCAfam 1333
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the Family Court of Australia, Simpson and Edwards were involved in a dispute regarding the parenting arrangements for their daughter, Z. The primary concern was determining the most suitable living and contact arrangements for Z, given the parents' differing views on what would be in her best interests. The case involved complex considerations of Z's emotional and developmental needs, as well as the respective roles each parent could play in her upbringing. The court was tasked with evaluating the evidence presented by both parties, including expert testimonies, and weighing these against the statutory principles outlined in the Family Law Act 1975.

The legal issues before the court encompassed several critical aspects of parenting orders. Firstly, the court had to determine the appropriate allocation of parental responsibility, considering the parents' capabilities and Z's needs. Secondly, it had to establish a contact and residence schedule that would ensure Z maintained a meaningful relationship with both parents while also promoting her stability and well-being. The court also needed to decide on specific logistical details, such as handover points and communication protocols between the parents, to facilitate a smooth transition between living arrangements.

The court concluded that sole parental responsibility should be assigned to the Father, acknowledging his consistent involvement in Z's life and his ability to provide a stable environment. The detailed contact schedule for the Mother was designed to foster a balanced relationship between Z and her Mother while minimizing disruption to Z's routine. The specific timings and conditions outlined aimed to accommodate Z's school schedule and other commitments, ensuring that her welfare remained the paramount consideration. Additionally, the court mandated certain information-sharing protocols and joint participation in Z's activities to maintain both parents' roles in her upbringing.

The final orders discharged all previous parenting arrangements and established new orders that provided for sole parental responsibility with the Father, detailed contact times for the Mother, and specific provisions for communication, handover logistics, and involvement in Z's activities. These measures were intended to create a structured and supportive environment for Z, facilitating her ongoing relationship with both parents in a manner that prioritised her best interests.

Orders

Orders of the court

All previous parenting orders be discharged.

The Father have sole parental responsibility for the child of the relationship [Z] born in 2001 (“[Z]”).

[Z] live with her Father.

[Z] spend time and communicate with her Mother as follows:

(a) during school terms, each alternate weekend from after school Friday to 5.00 pm Sunday commencing 6 February 2009;

(b) from 9.00 am on 2 January 2009 to 5.00 pm on 4 January 2009;

(c)

from 9.00 am on 8 January 2009 to 5.00 pm on

10 January 2009

;

(d)

from 9.00 am on 21 January 2009 to 5.00 pm on

23 January 2009

;

(e)

for half the school term holidays commencing Term 1 2009 as agreed between the parties, and failing agreement, from

12.00 noon the first Saturday to 12.00 noon the second Saturday of the term holiday;

(f) for two separate weeks in the long summer vacation commencing in the 2009/2010 summer vacation as agreed between the parties and failing agreement the week commencing 2 January and the week commencing 19 January;

(g)

on the Mother’s Day weekend from after school Friday to

5.00 pm

Sunday;

(h) from 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter and from 5.00pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter;

(i) from after school until 6.30 pm on [Z]’s birthday, the Mother’s birthday or [X]’s birthday if they fall on a school day and from 10.30 am until 2.30 pm if they fall on a non-school day;

(j)

by telephone each Tuesday, Thursday and Sunday between

6.00 pm

and 6.30 pm with the Mother to call [Z] on a number provided by the Father to the Mother; and

(k) as otherwise agreed between the parties.

To avoid any confusion, the Mother’s time with [Z] pursuant to order 4(a) herein, is suspended during the school holidays and recommences on the first weekend of each school term.

In the event [Z] is with her Mother on the Father’s Day weekend, her time shall cease at 5.00 pm on Saturday.

In the event [Z] is with her Mother when [Z]’s birthday falls on a Saturday, that time will be suspended between 10.30 am and 2.30 pm.

In the event [Z] is with her Mother when [Z]’s birthday falls on a Sunday, her time will conclude at 2.30 pm on that day.

[Z] shall be collected by the Mother from the McDonald’s Restaurant, [location omitted] at the commencement of her time with her Mother, when her Mother is not otherwise collecting her at the conclusion of school and shall be collected by the Father from the McDonald’s Restaurant, [location omitted] at the conclusion of [Z]’s time with her Mother save for order 7 when the Father shall collect [Z] from and return [Z] to the McDonald’s Restaurant, [location omitted].

10.

The Father shall advise the Mother at all times by the use of a Communications Book to be placed by him in [Z]’s bag of the following:

(a) the name of [Z]’s school;

(b) the names and contact details of all [Z]’s treating medical practitioners;

(c) the names and contact details of any counsellors, psychologists, educational psychologists and other professionals engaged in [Z]’s care; and

(d) details of all extra-curricular activities in which [Z] is participating.

11.

The Father shall do all things necessary to authorise all schools attended by [Z] to provide to the Mother at her expense, copies of all notices, newsletters, school reports and school photograph order forms and the Mother is authorised to attend parent/teacher interviews, school concerts, speech nights, sporting events and all other activities to which parents are usually invited to attend.

12.

The Father shall do all things necessary to authorise all of [Z]’s medical practitioners, counsellors, psychologists, educational psychologists and such other professionals who [Z] may attend upon from time to time to speak with the Mother in relation to [Z] and to involve the Mother in any such treatment if such professionals determine such involvement is in [Z]’s best interests.

13.

The Father shall do all things necessary to authorise the Mother’s attendance at any extra-curricular sporting, music or other activities in which [Z] is engaged from time to time.

14.

Both parents are to immediately notify the other of any serious illness or accident suffered by [Z] whilst in their care as well as the name of any treating medical practitioner or hospital to which [Z] is taken.

15.

The Independent Children’s Lawyer is authorised and directed to forthwith provide Ms S with a copy of these orders and reasons for judgment.

AND IT IS NOTED THAT:

A. The Father shall continue to pay all of [Z]’s educational expenses.

B. Both parents are at liberty to attend any of [Z]’s school, sporting or other extra-curricular events which parents would usually attend at the same time.

C. The Independent Children’s Lawyer has arranged for [Z] to attend upon Ms S on Thursday 18 December 2008 and for Ms S to explain these orders to [Z].

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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