Stuart & Stuart - [2008] FMCAfam 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STUART & STUART

[2008] FMCAfam 177

FAMILY LAW – Parenting – children – best interests – non-high-conflict – capable parents.

Family Law Act 1975, Part VII, Division 1, ss.60B, (1)(a) - (d), (2)(a) - (e), (3), 60CA, 60CC, (2), (2)(a), (b), (3), (3)(a) - (i), (l), (m), (3)(b)(i), (4), (4A)

Astor v Astor [2007] FamCA 355 (24^th April 2007)
C v B (2008) 38 Fam LR 1
C v O’N [2003] FMCAfam 154
Elspeth and Peter (2006) FamCA 1385
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
T v N (shared residence) (2001) 31 Fam LR 281

B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context (Melbourne: Oxford University Press, 2008)

T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8^th Annual Family Law Intensive, Sydney
R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131
J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16
I. Maddocks, “Grief and bereavement,” (15 September 2003) 179 Medical Journal of Australia S6

House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003

Applicant:

MR STUART

Respondent:

MS STUART

File Number:

CAC 1800 of 2007

Judgment of:

Neville FM

Hearing date:

12 February 2008 (Wagga Wagga)

Date of Last Submission:

12 March 2008

Delivered at:

Canberra

Delivered on:

5 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms Godtschalk

Solicitors for the Applicant:

Walsh & Blair Lawyers

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Capon & Hubert Solicitors

ORDERS

The parties have equal shared parental responsibility for the children [A] (born in 2001) and [B] (born in 2005).
The children live with the parties as follows:
(a)with the Father:
(i)every Friday night until Saturday 9.00 am until 1 July 2009;
(ii)in each alternate week from Friday afternoon until Monday 9.00 am; and then
(iii)from 1 July 2008 from Friday afternoon until Tuesday morning 9.00 am;
(iv)from 1 January 2009 from Friday afternoon until Wednesday morning;
(v)from 1 July 2009 from Friday afternoon week about;
(vi)at all other times that are agreed between the parties;
(b)otherwise with the Mother;
(c)during school holidays for half of each school holiday period.
The Children spend time with the parties on the following special days:
(a)For the period 9.00 am Christmas Eve until 2.00 pm Christmas Day:
(b)in 2008 and each alternate year thereafter with the mother;
(c)in 2009 and each alternate year thereafter with the father;
(d)On the Children’s birthdays for at least 3 hours with each parent; and
(e)With the Mother on the Mother’s birthday from 5.30 pm the night before her birthday until 8.30…

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 Stuart & Stuart

Details

AGLC: Stuart & Stuart [2008] FMCAfam 177
Case: [2008] FMCAfam 177
Decision Date: 5 June 2008

CaseChat Overview and Summary

The case involved Stuart and Stuart, parents of two children, [A] born in 2001 and [B] born in 2005. The dispute centred on the allocation of parental responsibility and the formulation of a parenting schedule. The Family Court of Australia was tasked with deciding these issues.

The primary legal issue before the court was the division of parental responsibility between the parents and the creation of a parenting plan that would provide a stable and beneficial environment for the children. This involved determining the allocation of time the children would spend with each parent, including specific arrangements for school holidays, special occasions, and the notification of significant events or changes in the children's circumstances.

The court considered the best interests of the children as the paramount concern. It concluded that an equal shared parental responsibility arrangement was in the best interests of the children, ensuring that both parents had a significant and active role in their upbringing. The court then devised a detailed parenting schedule that allocated specific times for the children to live with each parent, taking into account the children's ages, school schedules, and the parents' work commitments. Special occasions such as Christmas, birthdays, and parents' days were also addressed in the schedule. Additionally, the court emphasised the importance of communication and cooperation between the parents, mandating that they keep each other informed of significant changes or events affecting the children.

The court's final orders provided for equal shared parental responsibility for the children, detailed parenting arrangements for their time spent with each parent, and specific provisions for communication and notification between the parents regarding the children's health, contact details, and medical treatments.

Orders

Orders of the court

The parties have equal shared parental responsibility for the children [A] (born in 2001) and [B] (born in 2005).

The children live with the parties as follows:

(a) with the Father:

(i) every Friday night until Saturday 9.00 am until 1 July 2009;

(ii) in each alternate week from Friday afternoon until Monday 9.00 am; and then

(iii) from 1 July 2008 from Friday afternoon until Tuesday morning 9.00 am;

(iv) from 1 January 2009 from Friday afternoon until Wednesday morning;

(v) from 1 July 2009 from Friday afternoon week about;

(vi) at all other times that are agreed between the parties;

(b) otherwise with the Mother;

The Children spend time with the parties on the following special days:

(a) For the period 9.00 am Christmas Eve until 2.00 pm Christmas Day:

(b) in 2008 and each alternate year thereafter with the mother;

(d) On the Children’s birthdays for at least 3 hours with each parent; and

(e) With the Mother on the Mother’s birthday from 5.30 pm the night before her birthday until 8.30 am the morning following her birthday; and

(f) With the Father on the Father’s birthday from 5.30 pm the night before his birthday until 8.30 am the morning following her birthday; and

(g) With the mother on the Mother’s Day from 5.30 pm the night before Mother’s Day until 8.30 am the morning following Mother’s Day; and

(h) With the father on Father’s Day from 5.30 pm the night before Father’s Day until 8.30 am the morning following Father’s Day; and

(i) At any other time as agreed between the parties; and

(j) Where applicable, for the purpose of spending time with the parties as set out in this order, the arrangements set out in Order 2 be suspended.

Each party notify the other as soon as practicable in the event of either child suffering a serious illness or having a serious accident.

Each party keep the other informed of their addresses, landline telephone number and contact details, including mobile telephone numbers where they will be otherwise un-contactable.

Each party keep the other informed in relation to all medical, dental or other health related treatments being undertaken by the children and the identity of the treating professionals.

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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