Thackeray and Rand - [2013] FCCA 875

FEDERAL CIRCUIT COURT OF AUSTRALIA

THACKERAY & RAND

[2013] FCCA 875

Catchwords:
FAMILY LAW – Parenting – parental responsibility for long term decisions – whether presumption of equal shared parental responsibility is rebuttable – consideration of significant expert evidence relating to father’s inflexible attitudes and concerns with regard to long-term effects upon the child of continued exposure to such attitudes – determination on evidence that equal shared parental responsibility would not be in the best interests of the child – order for sole parental responsibility vesting in the mother – consideration of the best interests of the child in relation to time to be spent with each parent – determination that equal time as had existed was not appropriate to continue – order for child to live with mother and for father to spend alternate weekends with the child.

Legislation:

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

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

Applicant:

MS THACKERAY

Respondent:

MR RAND

File Number:

TVC 217 of 2011

Judgment of:

Judge Coker

Hearing dates:

30 & 31 May 2013

Date of Last Submission:

31 May 2013

Delivered at:

Townsville

Delivered on:

20 August 2013

REPRESENTATION

Applicant:

In person

Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Fellows

Solicitors for Independent Children’s Lawyer:

McKays Solicitors

ORDERS

That all previous orders in relation to the parenting of the child X born (omitted) 2006 be discharged.
The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, X born (omitted) 2006, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
Notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the child when he is living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the child when he is living with or spending time with him.
That the child live with the Mother.
That the child spend time with the Father at all reasonable times as may be agreed and, failing agreement, as follows:
(a)Each alternate weekend commencing from after school Friday to before school on the following Tuesday;
(b)For the first half of the gazetted school holidays in odd numbered years and the second half of the gazetted school holidays in even numbered years and with the Mother for the other half of such holidays in each year.
Notwithstanding the provisions of Order 5(b) herein, should the parent…

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 Thackeray and Rand

Details

AGLC: THACKERAY & RAND [2013] FCCA 875
Case: [2013] FCCA 875
Decision Date: 20 August 2013

CaseChat Overview and Summary

This matter concerned parenting orders for a child, X, born in 2006, between the Mother and the Father. The court was required to determine the arrangements for the child's long-term care, welfare, and development, as well as the specific time the child would spend with each parent.

The court was asked to determine the extent of parental responsibility for significant long-term decisions concerning the child, the daily care arrangements, and the specific schedule for the child to spend time with the Father. Additionally, the court needed to establish protocols for communication between the parents regarding the child and for the child's communication with the non-resident parent.

The court ordered that previous parenting orders be discharged. The Mother was granted sole parental responsibility for long-term decisions regarding the child's care, welfare, and development, with the requirement to consult the Father on matters such as education, religion, culture, health, name changes, and significant changes to living arrangements. The Mother was made responsible for the child's day-to-day care when the child was with her, and the Father was similarly responsible when the child was with him. The child was ordered to live with the Mother. The Father was to spend time with the child on alternate weekends, specific school holidays, and on Father's Day, with detailed provisions for the division of school holidays and special occasions like birthdays and Christmas. The court also established communication protocols, including email for non-urgent matters and specific times for telephone contact, and stipulated that changeovers should ideally occur at the child's school. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous orders in relation to the parenting of the child X born (omitted) 2006 be discharged.

The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, X born (omitted) 2006, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:

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

(b) child’s religious and cultural upbringing;

(d) a child’s name;

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

Notwithstanding order 2 herein:

(a) The Mother be responsible for the day-to-day care, welfare and development of the child when he is living with or spending time with her.

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

That the child live with the Mother.

That the child spend time with the Father at all reasonable times as may be agreed and, failing agreement, as follows:

(a) Each alternate weekend commencing from after school Friday to before school on the following Tuesday;

(b) For the first half of the gazetted school holidays in odd numbered years and the second half of the gazetted school holidays in even numbered years and with the Mother for the other half of such holidays in each year.

Notwithstanding the provisions of Order 5(b) herein, should the parent not having the child in their care be in the same locality as the other parent, then the parent who does not have the child with them for that holiday period will be able to spend time with the child from midday Christmas Eve to 1.00pm Christmas Day and from 12 noon to 5.00pm on Easter Sunday.

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 3.00pm 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 day of the recommencement of school;

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 3.00pm on the Friday which follows or 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 day of the recommencement of school;

(e) The first half of the gazetted Christmas school holiday period commences from 3.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 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 day of the recommencement of school.

That for the purpose of the interpretation and implementation of these Orders, the time the child will spend with the parents pursuant to Order 5(a) shall be suspended during the gazetted school holiday periods.

That on the child’s birthday or the birthday of any of his siblings or the birthdays of the parents, unless otherwise agreed in writing:

(a) In the event that such birthday falls on a school day, then the parent with whom the child is not then living shall spend time with the child from after school until 7.00pm, with the non-residential parent to collect the child from school at the commencement of this time and return him to the other parent at the changeover point pursuant to Order 12 at the conclusion of this time;

(b) In the event that such birthday falls on a non-school day, then the parent with whom the child is not then living shall spend time with the child for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm with changeover at the changeover point as set out in Order 12.

10.

That the child spend time with the Father on Father’s Day and with the Mother on Mother’s Day with the commencement of such time to begin from 5.00pm on the day before such day until 5.00pm on Father’s Day or Mother’s Day, with changeovers to occur in accordance with Order 12.

11.

That the child shall communicate with the parent he is not living with by telephone at all reasonable times, and in particular between 7.00pm and 7.30pm each Monday and Wednesday, or as otherwise agreed in writing between the parents, with the non-residential parent to initiate such phone call and the residential parent to ensure the child is available to receive such telephone calls in a quiet and private environment.

12.

That all changeovers, where possible, take place with start or finish at the child’s school on school days but otherwise changeovers shall occur at the (omitted) Service Station on the (omitted) Highway north of (omitted).

13.

That subject to written agreement to the contrary, the parents’ communications in relation to matters relating to the care, welfare and development of the child be by way of email. That should a response be required to such a communication such response shall be made by 9.00am on the following day. Communication by phone or text may only occur in case of emergency.

14.

That both parents shall ensure that the child attends all sporting, cultural or other social events including rehearsals and sporting practices when the child is with each parent.

15.

That each party be at liberty to attend all school organised events, activities or functions routinely attended by parents in respect of the child including (but not limited to) parent/teacher interviews, sports days, speech nights, school concerts, graduations and the like.

16.

That each parent shall advise the other of any change of address and/or telephone number within three days of such change.

17.

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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