Tucker and Tucker - [2008] FMCAfam 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUCKER & TUCKER

[2008] FMCAfam 54

FAMILY LAW – Parenting orders – previous orders between same parties – Rice and Asplund rule – whether material change in circumstances warranting variation of previous orders – variety of circumstances constitute sufficient material change to warrant consideration of application to vary – application to vary existing very general order granted to reflect existing circumstances.

FAMILY LAW – Parenting orders – consideration of primary and secondary factors – time spent – twelve hour shift roster – variation of existing order granted to reflect existing circumstances.

Family Law Act 1975 (Cth) ss.60CC(2), 60CC(3), 65DAA(1)(a), 65DAA(1)(b)
Family Law Amendment (Shared Parental Responsibility Act) 2006 (Cth)

In the Marriage of Rice and Asplund (1978) 6 Fam LR 570

Freeman and Freeman (1986) 11 Fam LR 293
McEnearney and McEnearney (1980) FLC 90-866

Burton and Burton (1979) FLC 90-622
Houston and Sedorkin (1979) FLC 90-699
F and N (1987) FLC 91-813
McL and McL (1991) 15 Fam LR 1
D & M [2005] FMCAfam 89
Goode & Goode (2006) 206 FLR 212
Hungerford & Tank [2007] FamCA 637

Applicant:

MS TUCKER

Respondent:

MR TUCKER

File No:

NCC 1833 of 2007

Judgment of:

Lucev FM

Hearing date:

26 September 2007

Date of Last Submission:

26 September 2007

Delivered at:

Sydney (by telephone link to N)

Delivered on:

7 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Bateman

Solicitors for the Applicant:

Smith Dunlop Lawyers

Respondent:

Appeared in person

The COURT ORDERS BY CONSENT:

That the children of the marriage B born in November 1990 and S born in March 1993 (‘the Children’) live with the Mother and Father.
That the Children live and spend time with the Father at all times as the Mother and Father agree and failing agreement as follows:
(a)In even numbered years from 12:00pm the mid point day of the Christmas school holiday to commencement of school at the end of Christmas school holiday;
(b)In even numbered years from 3:00pm Christmas Day to 12:00pm Boxing Day;
(c)In odd numbered years from after school the first day of the Christmas school holiday to 12:00pm the mid point day of the Christmas school holiday;
(d)From 6:00pm Father’s Day Eve to 5:00pm Father’s Day each and every year;
That Order 1(b) be suspended:
(a)From 6:00pm Mother’s Day Eve to 5:00pm Mother’s Day each and every year (albeit a weekend when the Children would be living with their Father);
(b)In odd numbered years from 3:00pm Christmas Day to 12:00pm Boxing Day.
That the parent with whom the Children are not living at the times of the Children’s respective birthdays spend 3 hours with the Children on those occasions.
That neither party say unkind or unpleasant things about the other party.
That the party having care of the Children advise the other if a Child or the Children at that time becomes seriously ill or suffers any accident or requires attention from any medical practitioner or at an emergency department of…

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 Tucker and Tucker

Details

AGLC: Tucker and Tucker [2008] FMCAfam 54
Case: [2008] FMCAfam 54
Decision Date: 7 February 2008

CaseChat Overview and Summary

The case of Tucker and Tucker involved the determination of parenting arrangements for two children, the subject of a dispute between their parents, the mother and the father. The matter was heard in the Family Court of Australia. The primary concern was the allocation of time the children would spend with each parent, given the father's work schedule which included twelve-hour shifts.

The court needed to decide how the children's time would be divided between the parents, taking into account the father's shift work. This included determining the specific times during which the children would reside with each parent based on the father's work roster. Another issue was ensuring that the parents could agree to variations in the parenting arrangements when necessary.

The court ruled that the children would spend time with the mother when the father was working his twelve-hour shifts, and with the father when he was not working such shifts. The parents were granted the flexibility to agree to variations in the time spent with either parent. The father was also required to inform the mother of his work roster within a week of receiving it from his employer. Finally, the court declared that both parents would have equal shared parental responsibility for the children.

Orders

Orders of the court

That subject to orders (1) to (8) above, and order (10) below, the Children are to spend time with:

(a) the Mother, at times when the Father is rostered to work under the twelve hour shift roster under which the Father is employed at the time these orders were delivered; and

(b) the Father, at times when the Father is not rostered to work under the twelve hour shift roster under which the Father is employed at the time these orders were delivered.

10.

The parents may vary order (9) above by agreement for any period of time to be spent with either parent.

11.

The Father is to provide the Mother with any twelve hour shift roster (and changes to the roster) provided to the Father by his employer within seven days of the provision of the roster (or changes to the roster) to the Father by his employer.

12.

The parents will have equal shared parental responsibility for the Children.

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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