SL and JS and Anor - [2007] FMCAfam 537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SL & JS & ANOR

[2007] FMCAfam 537

FAMILY LAW – Children – parenting order – time spent – equal shared parental responsibility.

Family Law Act, 1975 (Cth), ss.60B, 60CC(2)(3)(4) & (4A), 61DA, 65DAA(1)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Magistrates Court Rules, 2001 (Cth), r.8.02(4)(a)-(f)

B & B [2007] FMCAfam 82
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Hungerford v Tank [2007] FamCA 637
PS & OS [2007] FMCAfam 285

Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility”, paper delivered at 10^th Australian Family Lawyers Conference, 8-10 June 2007

Applicant:

First Respondent:

Second Respondent:

INDEPENDENT CHILDREN'S LAWYER

File Number:

BRC 2254 of 2007

Judgment of:

Lucev FM

Hearing date:

5 June 2007

Date of Last Submission:

5 June 2007

Delivered at:

Brisbane

Delivered on:

26 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr B.W. Thiele

Solicitors for the Applicant:

Legal Aid Queensland

Counsel for the First Respondent:

Mr G.O. Wildie

Solicitors for the First Respondent:

Greenhalgh Pickard Solicitors

Counsel for the Independent Children’s Lawyer:

Ms P. Kirkman-Scroope

Solicitors for the Independent Children’s Lawyer:

Rimmer Lawyers

ORDERS

(i)All previous parenting orders are discharged with effect from 9.00am on 30 July 2007.
(ii)That the Mother and Father have equal shared parental responsibility for the Child and all major long term issues concerning the Child.
(iii)That the Child spend equal time with each of the Mother and Father, and live with the Mother and Father on a week about basis, as follows:
1. from after school on Monday 30 July 2007 to before school the following Monday, with the Mother;
2. from after school on Monday 6 August 2007 to before school the following Monday, with the Father,
and each week thereafter alternating between the Mother and the Father, and provided that:
3. changeover occur at the Child’s school; and
4. when the Child is not at school, changeover occur at 10.00 am at the Contact Centre,
and subject to the Child spending time as follows:
5. with the Father from 9.00 am until 6.00 pm on Father’s Day;
6. with the Mother from 9.00 am until 6.00 pm on Mother’s Day;
7. with the Father from 9.00 am until 6.00 pm on the Father’s birthday;
8. with the Mother from 9.00 am until 6.00 pm on the Mother’s birthday;
9. on the Child’s birthday, with the parent who is not otherwise spending time with the Child from 6.00 pm to 9.00 pm;
10. with the Mother from 9.00 am to 9.00 pm on Christmas Eve, if the Child is not otherwise spending time with the Mother;
11. with the Father from 9.00 am to 9.00 pm on Christmas Day, if the Child is not otherwise spending time with the Father;
12. from 6.00 pm on New Years Eve to 6.00 pm on New Years Day:
a. with the Mother in 2007 and each second year thereafter,…

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 SL and JS and Anor

Details

AGLC: SL and JS and Anor [2007] FMCAfam 537
Case: [2007] FMCAfam 537
Decision Date: 26 July 2007

CaseChat Overview and Summary

SL and JS and Anor was a matter heard by the Family Court of Australia, concerning a dispute between the parents, SL (Mother) and JS (Father), regarding the parenting arrangements for their child. The primary issue was the establishment of a parenting plan that would detail the allocation of time and responsibilities between the parents in a manner that was deemed in the best interests of the child. The court was required to balance the competing interests and preferences of both parents while ensuring that the child’s welfare was prioritised.

The court deliberated on several legal principles, including the paramountcy of the child's best interests, the importance of continuity and stability in the child's life, and the need for both parents to have meaningful and ongoing involvement in the child's life. The court also considered the parents' capacity to provide for the child’s physical, emotional, and educational needs. The Mother and Father presented evidence and arguments regarding their parenting capabilities and proposed arrangements. The court needed to evaluate these submissions to determine a parenting plan that would foster a healthy and supportive environment for the child.

The court concluded that equal shared parental responsibility was in the child’s best interests and ordered that the child spend equal time with each parent, alternating on a weekly basis. The detailed schedule outlined specific times for the child to spend with each parent, including designated special occasions and holiday periods. The court mandated that changes in contact occur at specific locations and times to ensure consistency and predictability for the child. Additionally, the court imposed restrictions on the use of alcohol and illicit drugs during parenting time and required the parents to maintain communication and cooperation regarding the child's welfare. The court also appointed a Family Consultant to supervise compliance with the orders and provide assistance until the end of 2007.

The final orders included provisions for equal shared parental responsibility, a detailed time-sharing arrangement, communication protocols, and supervision by a Family Consultant. The Independent Children's Lawyer was discharged as the court found that the parties could adequately represent the child's interests without their involvement.

Orders

Orders of the court

(i) All previous parenting orders are discharged with effect from 9.00am on 30 July 2007.

(ii) That the Mother and Father have equal shared parental responsibility for the Child and all major long term issues concerning the Child.

(iii) That the Child spend equal time with each of the Mother and Father, and live with the Mother and Father on a week about basis, as follows:

1. from after school on Monday 30 July 2007 to before school the following Monday, with the Mother;

2. from after school on Monday 6 August 2007 to before school the following Monday, with the Father,

and each week thereafter alternating between the Mother and the Father, and provided that:

3. changeover occur at the Child’s school; and

4. when the Child is not at school, changeover occur at 10.00 am at the Contact Centre,

and subject to the Child spending time as follows:

5. with the Father from 9.00 am until 6.00 pm on Father’s Day;

6. with the Mother from 9.00 am until 6.00 pm on Mother’s Day;

7. with the Father from 9.00 am until 6.00 pm on the Father’s birthday;

8. with the Mother from 9.00 am until 6.00 pm on the Mother’s birthday;

9. on the Child’s birthday, with the parent who is not otherwise spending time with the Child from 6.00 pm to 9.00 pm;

10. with the Mother from 9.00 am to 9.00 pm on Christmas Eve, if the Child is not otherwise spending time with the Mother;

11. with the Father from 9.00 am to 9.00 pm on Christmas Day, if the Child is not otherwise spending time with the Father;

12. from 6.00 pm on New Years Eve to 6.00 pm on New Years Day:

a. with the Mother in 2007 and each second year thereafter, if the Child is not otherwise spending time with the Mother;

b. with the Father in 2008 and each second year thereafter, if the Child is not otherwise spending time with the Father.

13. by telephoning the Child at any reasonable time if the Child is not otherwise spending time with the telephoning parent, but not more than twice a day for a total of fifteen minutes on each occasion;

14. at all other time agreed between the parties;

15. that neither party spend time with the Child whilst they are under the influence of alcohol or illicit drugs,

and that in relation to 5-15 above the parent who is to spend time with the Child be responsible for arranging the pick up and return of the Child to the other parent.

(iv) both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of such change.

(v) that both parties are to authorise the Child’s school and medical and other health practitioners to communicate directly with each party on any matters concerning the Child.

(vi) that the Mother and the Father are to immediately inform the other parent of any medical emergency and serious injury involving the Child.

(vii) that neither party shall denigrate the other to or in the presence of the Child and neither party shall involve that Child in issues in dispute between the parties.

(viii) Under s.65L of the Family Law Act, that compliance with these orders be supervised by a Family Consultant appointed by the Manager Child Dispute Services, Brisbane Registry, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying out of, these orders, until 31 December 2007.

(ix) The Independent Children’s Lawyer be discharged.

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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