Stone and Menzies - [2015] FCCA 12

FEDERAL CIRCUIT COURT OF AUSTRALIA

STONE & MENZIES

[2015] FCCA 12

Catchwords:
FAMILY LAW – Parenting – allegations of serious domestic violence by mother – denial of domestic violence by father – parental responsibility – consideration of evidence relating to possible rebuttal of presumption – determination on evidence that equal shared parental responsibility should be ordered – consideration of equal time or significant and substantial time – best interests of the child – determination to work toward equal time by graduated steps.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell and Chappell (2008) FLC 93-382

Applicant:

MR STONE

Respondent:

MS MENZIES

File Number:

TVC 1188 of 2012

Judgment of:

Judge Coker

Hearing dates:

4-6 June 2014

Date of Last Submission:

6 June 2014

Delivered at:

Townsville

Delivered on:

13 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Keegan

Solicitors for the Applicant:

Purcell Taylor Lawyers

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

Dillon Bower Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Fellows

Solicitors for the Independent Children’s Lawyer:

Greg Pohlmann Solicitor

ORDERS

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2007, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
That the child live with the Mother and the Father in accordance with orders (a) through (d):
(a)Until 30 April 2015 with the Father from after school Thursday until before school Monday or Tuesday, should the Monday be a public holiday in each alternate weekend, and at all other times with the Mother;
(b)From 1 May 2015 until 31 August 2015, from after school Thursday until before school Tuesday in each alternate week and at all other times with the Mother;
(c)From 1 September 2015 until the commencement of the end of Term 4 school holidays, from after school Thursday until before school Wednesday in each alternate week, and at all other times…

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 Stone and Menzies

Details

AGLC: Stone and Menzies [2015] FCCA 12
Case: [2015] FCCA 12
Decision Date: 13 January 2015

CaseChat Overview and Summary

This matter came before Judge Coker concerning parenting orders for a child, X, born in 2007. The dispute centred on the arrangements for the child's care, living arrangements, and parental responsibilities following the separation of the child's parents.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues, including the child's education, religious and cultural upbringing, health, name, and significant changes to living arrangements. Additionally, the court needed to establish specific provisions for the day-to-day care, welfare, and development of the child, as well as detailed arrangements for the child's living schedule with each parent, including during school holidays and on special days. The court also had to consider communication protocols between parents, the process for resolving future disputes, and the discharge of an Independent Children's Lawyer.

Judge Coker made orders establishing equal shared parental responsibility for major long-term issues, requiring the parents to consult and make genuine efforts to reach joint decisions. The orders also stipulated that each parent would be responsible for the child's day-to-day care while the child was with them. A detailed schedule for the child's living arrangements with each parent was set out, progressively increasing the Father's time with the child over several stages. Specific provisions were made for school holidays, special days, and regular communication between the child and the parent not having care. The court also ordered that parents keep each other informed of addresses, contact details, and medical information, and authorised schools to provide information to both parents. A dispute resolution process involving family dispute resolution practitioners was mandated, with specific steps for selecting a practitioner if the parents could not agree.

The court ordered the discharge of the Independent Children's Lawyer.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2007, including but not limited to:

(a) the child’s education (both current and future);

(b) the child’s religious and cultural upbringing;

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 1 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.

That the child live with the Mother and the Father in accordance with orders (a) through (d):

(a) Until 30 April 2015 with the Father from after school Thursday until before school Monday or Tuesday, should the Monday be a public holiday in each alternate weekend, and at all other times with the Mother;

(b) From 1 May 2015 until 31 August 2015, from after school Thursday until before school Tuesday in each alternate week and at all other times with the Mother;

(c) From 1 September 2015 until the commencement of the end of Term 4 school holidays, from after school Thursday until before school Wednesday in each alternate week, and at all other times with the Mother;

(d) From the commencement of Term 1 in 2016 to alternate each week from after school Friday until before school Friday in the following week.

That these orders be suspended during the gazetted school holidays and that each parent spend time with the child for one half of the school holiday periods, unless otherwise agreed as follows:

(a) With the Father for first half in odd numbered years and with the Mother for the second half in odd numbered years; and

(b) With the Mother for the first half in even numbered years and with the Father for the second half in even numbered years.

That the child spend time with the parent that would not otherwise have the child in their care on special days, and if not otherwise agreed, as follows:

(a) On the child’s birthday, if a school day, from the conclusion of school until 7.30pm or from 12.00 noon until 5.00pm, if a non-school day;

(b) On each of the parent’s birthdays, if a school day, from the conclusion of school until 7.30pm or from 12.00 noon until 5.00pm, if a non-school day;

(c) On Father’s Day and Mother’s Day, the parent who is having the special day shall spend time with the child from 9.00am to 5.30pm;

(d) On Christmas Day, if in the same locality:

(i) In 2015 and all odd years thereafter, with the Mother from midday Christmas Day until 5.00pm Boxing Day ;

(ii) In 2016 and all even years thereafter, with the Father from midday Christmas Day until 5.00pm Boxing Day.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from after school on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to before school on the first day of the next term;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from after school on the day which is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(d) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until before school on the first day of the next term;

(e) The first half of the gazetted Christmas school holiday period commences from after school on the day on which school concludes until 6.00pm on the Saturday falling approximately 22 days later;

(f) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until before school on the first day of the next term.

That each parent have the opportunity to communicate with the child at all reasonable times and in particular unless otherwise agreed, each Sunday and Wednesday between the hours of 6.00pm and 6.30pm with the parent not having the child in their care to facilitate the call to the parent having the child in their care and that parent to ensure the child is available to take the call in a quiet and private environment.

Should any changeover pursuant to these orders not be able to be effected at the child’s school, then unless otherwise agreed between the parents to be effected at the McDonald’s Family Restaurant, (omitted).

10.

That the Mother and the Father shall:

(a) Keep the other parent informed at all times of their residential address and landline and mobile contact telephone number;

(b) Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

11.

That the Mother and Father authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.

12.

That the parties are to agree on at least one extra-curricular activity for the child in each school term and to ensure that:

(a) The parents exchange information in relation to the extra-curricular activity, and

(b) When the child is in their care, that she attends as required at any training, lessons, or games.

13.

That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:

(a) The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;

(b) They shall pay the costs of the Family dispute resolution Practitioner equally;

(c) In the event that they cannot agree on a Family dispute resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability.

(d) The Father shall choose one of the listed practitioners within 7 days of receipt of the list;

(e) If the Father fails to choose then the Mother may choose.

14.

That 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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