STARKEY & STARKEY - [2011] FMCAfam 738

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STARKEY & STARKEY

[2011] FMCAfam 738

FAMILY LAW – Final parenting orders – previous consent orders entered into – breakdown of communication – supervised contact – apprehended domestic violence proceedings and final order – damage and violence toward property – allegations of mental health issues alleged to be residual symptoms of a brain injury – past diagnosis of depression.

Family Law Act 1975, ss.4, 65F, 13C, 69ZT, 60B, 60CA, 61DA, 65DAA(5), 65DAA(2), 65DAA(3), 60CC, 65DAC, 60CG, 60I
Federal Magistrates Act 1999, s.42
Evidence Act 1995, s.144

Jones & Dunkel (1959) 101 CLR 298
AMS & AIF (1999) 199 CLR 160
Goode & Goode [2006] FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Pitken & Hendry [2008] FamCA 186
Dylan & Dylan [2007] FamCA 842
Mazorski & Albright [2007] FamCA 520

Applicant:

MS STARKEY

Respondent:

MR STARKEY

File Number:

PAC 2645 of 2009

Judgment of:

Harman FM

Hearing dates:

2, 3 and 4 May 2011

Date of Last Submission:

4 May 2011

Delivered at:

Sydney

Delivered on:

6 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Moss

Solicitors for the Applicant:

Herbert Welller

Counsel for the Respondent:

Mr Sansom

Solicitors for the Respondent:

Watts McCray Lawyers

ORDERS

That all prior parenting orders with respect to the children [X], [Y] and [Z] shall be discharged.
[X], [Y] and [Z]’s parents, namely their mother Ms Starkey and father Mr Starkey, shall have equal shared parental responsibility. [X], [Y] and [Z] shall live with their mother. They shall spend time with their father as follows:
(a)
Each of 14 and 28 May and 11 and 25 June from 9 am until

2 pm;
(b)
Each of 9 and 23 July and 6 and 20 August from 9 am until

5 pm;
(c)Each of the weekends of 3 September, 17 September, 1 October and 15 October from 10 am on Saturday until 3 pm on Sunday;
(d)Thereafter for each alternate weekend commencing 28 October and continuing until the conclusion of term 1, 2012 from 6 pm Friday until 3 pm Sunday providing that the weekend on which Christmas Day falls shall end at 3 pm Sunday;
(e)From the conclusion of term 1, 2012 each alternate weekend during school terms from 6 pm Friday till 3 pm Sunday extending to 3 pm Monday for long weekend;
(f)One week in each of the short New South Wales holidays being the first week, for a period in the Christmas holidays in each year being one week in 2012 commencing at 3 pm on Boxing Day, for two weeks in 2013 commencing 3 pm on Christmas Eve, for a period of two weeks in 2014 commencing 3 pm on 26 December.;
(g)For the second half of the school holidays in 2015, 16 and each alternate year thereafter commencing 3 pm on 7 January concluding 3 pm on last Sunday and for the first half in all other Christmas school holidays commencing 3 pm on the…

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 STARKEY & STARKEY

Details

AGLC: STARKEY & STARKEY [2011] FMCAfam 738
Case: [2011] FMCAfam 738
Decision Date: 6 May 2011

CaseChat Overview and Summary

The case of Starkey & Starkey was heard in a Family Court of Australia. The matter involved a dispute between the parents, Ms Starkey and Mr Starkey, regarding the parenting arrangements for their three children, [X], [Y] and [Z]. The primary concern was to determine the appropriate parenting orders that would be in the best interest of the children, including the allocation of parental responsibility and the specific time-sharing arrangements.

The court was required to decide several legal issues, including the allocation of equal shared parental responsibility between the parents, the primary residence of the children, and the detailed time-sharing schedule that would allow for meaningful and consistent contact between the children and their father. The court also needed to address the logistics of changeovers, communication between the children and their non-resident parent, and the exchange of information related to the children’s health and education.

In making its determination, the court emphasised the need for a detailed and structured parenting plan that would provide stability and predictability for the children. The court concluded that equal shared parental responsibility was appropriate, given the parents’ willingness and ability to cooperate. The children were to reside primarily with their mother, but their father was granted extensive and specific time-sharing arrangements, including regular contact during weekends and school holidays. The court also addressed the logistics of changeovers and communication, ensuring that both parents could maintain a meaningful relationship with the children. The court's orders were designed to provide a clear and comprehensive framework for the children's care and contact with both parents.

The final orders of the court included the discharge of all prior parenting orders, the allocation of equal shared parental responsibility, and a detailed schedule for the children's time-sharing with their father. The court also addressed the logistics of changeovers, communication, and the exchange of information between the parents and the children's schools. The orders were designed to ensure that both parents could participate fully in the children's lives while providing a stable and predictable environment for the children.

Orders

Orders of the court

That all prior parenting orders with respect to the children [X], [Y] and [Z] shall be discharged.

[X], [Y] and [Z]’s parents, namely their mother Ms Starkey and father Mr Starkey, shall have equal shared parental responsibility. [X], [Y] and [Z] shall live with their mother. They shall spend time with their father as follows:

(a)

Each of 14 and 28 May and 11 and 25 June from 9 am until

2 pm;

(b)

Each of 9 and 23 July and 6 and 20 August from 9 am until

5 pm;

(c) Each of the weekends of 3 September, 17 September, 1 October and 15 October from 10 am on Saturday until 3 pm on Sunday;

(d) Thereafter for each alternate weekend commencing 28 October and continuing until the conclusion of term 1, 2012 from 6 pm Friday until 3 pm Sunday providing that the weekend on which Christmas Day falls shall end at 3 pm Sunday;

(e) From the conclusion of term 1, 2012 each alternate weekend during school terms from 6 pm Friday till 3 pm Sunday extending to 3 pm Monday for long weekend;

(f) One week in each of the short New South Wales holidays being the first week, for a period in the Christmas holidays in each year being one week in 2012 commencing at 3 pm on Boxing Day, for two weeks in 2013 commencing 3 pm on Christmas Eve, for a period of two weeks in 2014 commencing 3 pm on 26 December.;

(g) For the second half of the school holidays in 2015, 16 and each alternate year thereafter commencing 3 pm on 7 January concluding 3 pm on last Sunday and for the first half in all other Christmas school holidays commencing 3 pm on the day after school breaks up until 3 pm on 7 January;

(h) For the Father’s Day weekend each year from 6 pm Friday until 3 pm Sunday and providing that if Mother’s Day falls on a weekend that would be the father’s, the time will for that weekend be suspended; and

(i) For such further and/or other periods as agreed between the parents.

For the purpose of [X], [Y] and [Z] spending time with their dad for the 9 am until 2 pm periods that changeovers on 14 May and 11 June shall occur at McDonald’s [M] and changeovers on 28 May and 25 June shall occur at the [B] Children's Contact Centre.

For the purpose of the periods 9 am till 5 pm on Saturday’s changeovers will be at [B]. For all other changeovers thereafter changeovers shall occur at McDonald’s [L].

Both parents are entitled to communicate with the children by phone, email or internet-based chat facilities at all reasonable times and with respect to same the parent in whose care they are will provide such assistance as the children require to enable them to participate and will encourage, allow and permit same and subject only to that that the children will be allowed to communicate with the other parent with privacy and without interference or impediment.

Each will keep the other advised at all times of their address, contact telephone number and emergency phone number or person and their email addresses for themselves and if the children have their own email addresses, for the children.

Both parents are fully entitled to attend at and participate in any activity at their schools.

Both parents to provide written authority to the children’s schools to enable both parents to obtain such documents or information as they desire.

Both to keep each other advised of any significant illness, specialist medical treatment for the children and provide authority so that both parents can consult and be advised.

10.

Otherwise dismiss all outstanding applications, remove all issues from the list of cases awaiting hearing.

11.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

12.

Grant leave to the Independent Children's Lawyer to make an application for contribution to costs, decline to make any order.

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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