VAUGHAN & VAUGHAN & SCOTT - [2010] FMCAfam 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAUGHAN & VAUGHAN & SCOTT

[2010] FMCAfam 863

FAMILY LAW – Parenting orders – parental responsibility orders in favour of a non-biological parent – allegations of unacceptable risk of harm in each household – children’s wishes – separation of siblings.

Family Law Act 1975, ss.60B(1) and (2), 60CA, 60CC, 61DA, 64C, 65C, 65DAA

Vaughan and Vaughan [2009] FMCAfam 1271
Aldridge and Keaton (2010) 42 FamLR 369
Rice v Miller (1993) 16 FamLR 970
Re Evelyn (1998) 23 FamLR 73
Potts and Bims [2007] FamCA394
MRR v GR [2010] HCA 4; (2010) 42 FamLR531

Applicant:

MS VAUGHAN

First Respondent:

MR VAUGHAN

Second Respondent:

MR SCOTT

Independent Children’s Lawyer:

LEGAL AID COMMISSION NSW

File Number:

TVC48 of 2008

Judgment of:

Lapthorn FM

Hearing dates:

11, 12 August; 26 November 2009;
29, 30 and 31 March & 1 April 2010

Date of Last Submission:

1 April 2010

Delivered at:

Newcastle

Delivered on:

23 August 2010

REPRESENTATION

The Applicant:

Self Represented

Solicitor for the First Respondent:

Mr Paul Smith

Solicitors for the First Respondent:

Curtis Gant & Irving Solicitors

The Second Respondent:

No appearance

Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of New South Wales

ORDERS

Mr Vaughan have sole parental responsibility of the children [Y] born [in] 1997 and [Z] born [in] 1999.
Mr Vaughan must inform and provide details to Ms Vaughan, in relation to both children and Mr Scott in relation to [Y] as soon as practicable after any of the following apply:
a)Any intention of changing the children’s school enrolment;
b)Any extra curricula activities in which he intends to involve the children;
c)A copy of each of the children’s school reports; and
d)Any special school or extra curricula event involving the children;
e)The name, address and telephone number of any counsellor or medical professional on whom the children are attending;
f)If the children develop a serious illness or require emergency medical attention or hospitalisation.
The children live with Mr Vaughan.
Ms Vaughan notify Mr Vaughan in the event the children become seriously ill or suffer serious injury during the time they spend with her.
All parties are restrained from denigrating one another in the presence or hearing of the children and must use their best endeavours to ensure no other person does so.
All parties are restrained from using physical discipline on the children and must use their best endeavours to ensure no other person does so.
Mr Vaughan must as soon as practicable arrange for [Y] to be involved in personal counselling, which is to focus on his relationship with his mother.
The children spend time with Ms Vaughan as follows:
a)For the whole of the New South Wales holiday periods at the end of Terms 1 and 3 in odd numbered years provided the child is returned one whole day prior to the commencement of school;
b)Subject to order (9), for the whole of the New South Wales holiday periods 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 VAUGHAN & VAUGHAN & SCOTT

Details

AGLC: VAUGHAN & VAUGHAN & SCOTT [2010] FMCAfam 863
Case: [2010] FMCAfam 863
Decision Date: 23 August 2010

CaseChat Overview and Summary

In the matter of Vaughan & Vaughan & Scott, the court addressed a dispute between the parents regarding the care and upbringing of their children. The case involved the allocation of parental responsibility, residence arrangements, and the specifics of the children's time to be spent with each parent. The court's decision outlined comprehensive orders to manage the children's residence, contact, and the overall welfare arrangements between the parents.

The legal issues before the court encompassed the allocation of parental responsibility, the determination of the primary residence of the children, and the establishment of a detailed schedule for the children's time with each parent, including specific obligations and restrictions. Additionally, the court had to address provisions for the children's education, health, and communication with each parent, as well as measures to prevent the children from being exposed to parental conflict and discipline.

The court granted sole parental responsibility to Mr. Vaughan, while requiring him to provide Ms. Vaughan and Mr. Scott with certain details relating to the children's schooling, activities, and health. The children were ordered to reside primarily with Mr. Vaughan, with Ms. Vaughan having specified periods of time with the children, including during school holidays. The court also mandated that the children travel by air between Newcastle and their mother's location, with travel costs shared equally. Furthermore, the court enjoined all parties from denigrating one another in the presence of the children and from using physical discipline. The orders also included provisions for the children's mental health and their contact with extended family members.

In summary, the court's decision provided a detailed framework for the children's residence and contact with each parent, while also establishing measures to protect the children from exposure to conflict and to ensure their wellbeing and development.

Orders

Orders of the court

Mr Vaughan have sole parental responsibility of the children [Y] born [in] 1997 and [Z] born [in] 1999.

Mr Vaughan must inform and provide details to Ms Vaughan, in relation to both children and Mr Scott in relation to [Y] as soon as practicable after any of the following apply:

a) Any intention of changing the children’s school enrolment;

b) Any extra curricula activities in which he intends to involve the children;

c) A copy of each of the children’s school reports; and

d) Any special school or extra curricula event involving the children;

e) The name, address and telephone number of any counsellor or medical professional on whom the children are attending;

f) If the children develop a serious illness or require emergency medical attention or hospitalisation.

The children live with Mr Vaughan.

Ms Vaughan notify Mr Vaughan in the event the children become seriously ill or suffer serious injury during the time they spend with her.

All parties are restrained from denigrating one another in the presence or hearing of the children and must use their best endeavours to ensure no other person does so.

All parties are restrained from using physical discipline on the children and must use their best endeavours to ensure no other person does so.

Mr Vaughan must as soon as practicable arrange for [Y] to be involved in personal counselling, which is to focus on his relationship with his mother.

The children spend time with Ms Vaughan as follows:

a) For the whole of the New South Wales holiday periods at the end of Terms 1 and 3 in odd numbered years provided the child is returned one whole day prior to the commencement of school;

b) Subject to order (9), for the whole of the New South Wales holiday periods at the end of Terms 2 and 3 in even numbered years;

c) Subject to order (9), from the first Saturday until the fourth Saturday of the New South Wales Christmas school holiday period after the end of school in even numbered years;

d) From 2 January in New South Wales Christmas school holidays (when Christmas is in a odd numbered year) until two (2) days before the recommencement of school;

e) For up to seven (7) days twice a year when Ms Vaughan is in the [Town M] locality, conditional upon Ms Vaughan providing Mr Vaughan with seven (7) days notice of each visit and the children attending school.

[Y] will spend time with Ms Vaughan during the first week of term 3 school holiday period in 2010 conditional upon Ms Vaughan ensuring that [X] is not present in the household during such time. In the event that Ms Vaughan is unable to make arrangements for the child [X] to be absent from the household during that period then [Y]’s time with Ms Vaughan in the Christmas school holidays 2010 will also be for a period of 1 week and conditional upon the child [X]’s absence from the mother’s household.

10.

For the time that the children spend with Ms Vaughan during the school holidays the children are to fly by return airflight from Newcastle to [Town T] with Ms Vaughan collecting the children at [Town T] Airport. At the cessation of the time that the children spend with Ms Vaughan she is to deliver the children back to [Town T] Airport before onward travel to Newcastle. Mr Vaughan and Ms Vaughan are to share equally the costs of facilitating such travel.

11.

The children communicate with Ms Vaughan by telephone on at least two (2) occasions per week to be initiated by Mr Vaughan arranging for the children to make the telephone calls and by the use of Skype at least once per week with the times of the communication to be agreed between the parties and failing agreement at 7.30pm New South Wales time.

12.

Mr Vaughan facilitate the child [Y] spending time and communicating with Mr Scott as agreed between Mr Vaughan and Mr Scott.

13.

Mr Vaughan must actively encourage and facilitate the children spending time with members of Ms Vaughan’s extended family living in [Town S] and [Town M].

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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