Underwood and Pratt - [2014] FCCA 3079

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNDERWOOD & PRATT

[2014] FCCA 3079

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility – whether children should spend equal time with each parent – four children aged 12 years, 10 years, 7 years and 5 years – where mother seeks orders that children should live with her and spend time with father – where orders provide that the parties’ two sons should spend an additional night each fortnight each fortnight with their father – public holidays – provision made for two younger children to spend public holiday Mondays with their father where the public holiday immediately follows a weekend where the children would otherwise be spending time with the father – whether children’s time with the father should increase annually.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA

Applicant:

MS UNDERWOOD

Respondent:

MR PRATT

File Number:

NCC 2003 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

13-14 October, 28 November 2014

Date of Last Submission:

28 November 2014

Delivered at:

Sydney

Delivered on:

4 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Hunter Family Law Centre Pty Ltd

Respondent:

In person

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children W born (omitted) 2002, X born (omitted) 2004, Y born (omitted) 2007 and Z born (omitted) 2009.
The children W, X, Y and Z are to live with the Mother.
The children W, X, Y and Z are to spend time with their father as follows:
(a)During the school term:
(i)on each alternate Friday from immediately after school or 3:00pm until the commencement of school on the following Monday or 9:00am for the children Y and Z and until the commencement of school on Tuesday or 9:00am for the children W and X PROVIDED THAT if the Monday is a public holiday then the children Y and Z will also spend time with the Father until the commencement of school or 9:00am on the Tuesday; and
(ii)in the off week from immediately after school or 3:00pm on the Monday until the commencement of school or 9:00am on the Tuesday;
(b)During the school holidays at the end of Term 4 in 2014 from 2:00pm on Christmas Day until 2:00pm on 8 January 2015 for all four of the children and for W and X from 2:00pm on 18 January until 2:00pm on 25 January 2015;
(c)During the school holidays at the end of Terms 1, 2 and 3 from 2:00pm on the middle Saturday until 2:00pm on the last day of the school holidays;
(d)During the school holidays at the end of Term 4 in 2015 and all odd numbered years thereafter from 2:00pm on 4 January until 2:00pm on the last day of the school holidays; and
(e)During the school holidays at the end 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 Underwood and Pratt

Details

AGLC: Underwood and Pratt [2014] FCCA 3079
Case: [2014] FCCA 3079
Decision Date: 4 December 2014

CaseChat Overview and Summary

In the matter of Underwood and Pratt, heard before Judge Scarlett, the dispute concerned parenting orders for four children: W, X, Y, and Z. The court was tasked with determining the appropriate arrangements for the children's care, time spent with each parent, and related matters.

The primary legal issues before the court were to establish equal shared parental responsibility for the children, determine with whom the children would live, and set out the specific times the children would spend with their father, including during school terms and holidays. The court also had to consider provisions for special occasions, communication between parents and children, and injunctive relief to protect the children from parental criticism and discussion of court proceedings.

Judge Scarlett discharged all earlier parenting orders and made new orders reflecting equal shared parental responsibility. The children were ordered to live with the Mother, with detailed provisions outlining the Father's time with them, including alternating weekends during school terms and specific arrangements for school holidays. The court also included orders for liberal telephone communication, injunctions restraining criticism of either parent in the children's presence or discussion of proceedings with the children, and obligations for each parent to inform the other of significant events concerning the children's health or welfare.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children W born (omitted) 2002, X born (omitted) 2004, Y born (omitted) 2007 and Z born (omitted) 2009.

The children W, X, Y and Z are to live with the Mother.

The children W, X, Y and Z are to spend time with their father as follows:

(a) During the school term:

(i) on each alternate Friday from immediately after school or 3:00pm until the commencement of school on the following Monday or 9:00am for the children Y and Z and until the commencement of school on Tuesday or 9:00am for the children W and X PROVIDED THAT if the Monday is a public holiday then the children Y and Z will also spend time with the Father until the commencement of school or 9:00am on the Tuesday; and

(ii) in the off week from immediately after school or 3:00pm on the Monday until the commencement of school or 9:00am on the Tuesday;

(b) During the school holidays at the end of Term 4 in 2014 from 2:00pm on Christmas Day until 2:00pm on 8 January 2015 for all four of the children and for W and X from 2:00pm on 18 January until 2:00pm on 25 January 2015;

(c) During the school holidays at the end of Terms 1, 2 and 3 from 2:00pm on the middle Saturday until 2:00pm on the last day of the school holidays;

(d) During the school holidays at the end of Term 4 in 2015 and all odd numbered years thereafter from 2:00pm on 4 January until 2:00pm on the last day of the school holidays; and

(e) During the school holidays at the end of Term 4 in 2016 and all even numbered years thereafter from 2:00pm on the first day of the school holidays until 2:00pm on 4 January; and

(f) At such other times as the parties may agree.

To avoid confusion the last day of the school holidays means the day before the children are required to attend school at the commencement of the next school term.

The children’s time with the parties in accordance with Order (4) above will be suspended to allow the children W, X, Y and Z to spend time with the Mother and Father on special occasions as follows:

(a) During the Christmas period in 2014 and even numbered years thereafter with the mother from 12:00 noon on Christmas Eve until 2:00pm on Christmas Day and with the father from 2:00pm on Christmas Day until 6:00pm on Boxing Day;

(b) During the Christmas period in 2015 and odd numbered years thereafter with the father from 12:00 noon on Christmas Eve until 2:00pm on Christmas Day and with the Mother from 2:00pm on Christmas Day until 6:00pm on Boxing Day;

(d) On the weekend that includes Mother’s Day the children will spend time with the mother from 9:00am on Mother’s Day until the commencement of school or 9:00am the following day;

(e) On the weekend that includes Father’s Day the children will spend time with the father from 9:00 am on Father’s Day until the commencement of school or 9:00 am the following day;

(f) On the children’s birthdays all four of the children will spend time with the parent not otherwise having the care of the children on that day from 10:00am until 2:00pm if on a day when the children are not required to attend school or from 5:30pm until the commencement of school the following morning if on a school day;

(g) On the Mother’s birthday the children will spend time with the Mother from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school or from immediately after school until the commencement of school or 9:00am the following morning if on a school day; and

(h) On the Father’s birthday the children will spend time with the Father from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school or from immediately after school until the commencement of school or 9:00am the following morning if on a school day.

Orders (4) and (6) above will be implemented between the parties and failing agreement by the parent requesting the care of the children or a responsible adult nominated by that parent collecting the children from and returning the children to:

(a) the children’s respective schools on school days; or

(b) the other parent’s residential address on a day when the children are not required to attend school.

Both parents are to have liberal telephone communication with the children at all reasonable times and the parent having the care of the children must facilitate telephone communication with the other parent at the request of any of the children.

Each party is restrained by injunction from criticising or denigrating the other party or any member of the other party’s family in the presence or hearing of the children or permitting any third person to do so.

10.

Each party is restrained by injunction from discussing these Court proceedings with any of the children or showing any of the children any Court documents or any correspondence relating to parenting arrangements or these proceedings or permitting any third person to do so.

11.

Each parent must inform the other parent as soon as is reasonably practicable if any of the children suffers a serious illness or injury or is prescribed any medication or is required to be treated in a hospital or by a specialist medical practitioner.

12.

Each parent must inform the other parent as soon as is reasonably practicable of any emergency relating any of the children or of any matter detrimental to the welfare of any of the children.

13.

Each parent must inform the other parent within 24 hours of any change to his or her telephone contact numbers or residential address.

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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