Walter and Campbell - [2010] FMCAfam 397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALTER & CAMPBELL

[2010] FMCAfam 397

FAMILY LAW – Equal shared parental responsibility – equal time – whether need to consider substantial and significant time with.

Family Law Act 1975, ss.60CC, 61DA(1), 65DA(5), 65DAA(2), 65DAA(5)

In the Marriage of Hall (1979) 5 FamLR
Newlands & Newlands [2007] FamCA 168
MRR v GR [2010] HCA 4
N and N [2004] FamCA 706
L and L [2002] FamCA 537

Applicant:

MS WALTER

Respondent:

MR CAMPBELL

File Number:

MLC 5759 of 2009

Judgment of:

Turner FM

Hearing dates:

22, 23 & 24 March 2010

Date of Last Submission:

24 March 2010

Delivered at:

Melbourne

Delivered on:

28 April 2010

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Pearsons Barristers & Solicitors

Counsel for the Respondent:

Ms Byrnes

Solicitors for the Respondent:

Cathleen Corridon Solicitor

ORDERS

[X] born [in] 2001 (“[X]”) spend equal time with each of his parents by living with them in alternate weeks from after school on Fridays until the commencement of school the following Friday.
(a)This Order is to take effect immediately so that [X] spend time with his mother commencing from after school on the first Friday after this decision.
[X] spend time with his mother from 5pm on 25 December 2010 until 5pm on 28 December 2010 and in each alternate year thereafter.
[X] spend time with his mother from 5pm on 23 December 2011 until 5pm on 25 December 2011 and in each alternate year thereafter.
[X] spend time with his mother from 6pm on Easter Sunday 2011 until 6pm on Easter Monday 2011 and in each alternate year thereafter.
[X] spend time with his mother from 10am on Good Friday 2012 until 6pm on Easter Sunday 2012 and in each alternate year thereafter.

ORDERS BY CONSENT

All previous parenting Orders be discharged.
The parents have equal shared parental responsibility for the child of the relationship, [X], born [in] 2001 (“the child”).
That on all school days changeovers shall occur at the child’s school and on non-school days at the paternal grandparents’ home.
Both parties, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting belittling, rebuking or otherwise denigrating the other or any member of their family;
(b)Discussing Family Law or related proceedings to, with, or in the presence or hearing of the child, and from permitting any other person from doing so.
In the event that the child suffers a serious injury or illness whilst in the care of one or other of the parties, the person whose care the child is in, will immediately notify the other of the details of the illness or injury and whether the child is or has received treatment and the nature of the treatment.
Without admission, neither party shall consume illicit drugs whilst the child is in their care.
Both parents authorise the school that the child attends to provide both parents with all school reports, photographs, newsletters and other documentation normally provided to parents…

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 Walter and Campbell

Details

AGLC: Walter and Campbell [2010] FMCAfam 397
Case: [2010] FMCAfam 397
Decision Date: 28 April 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Walter and Campbell involved the parents of a child born in 2001, who were engaged in a dispute over parenting arrangements. The parents reached an agreement on certain aspects of the dispute and sought the court's approval for those terms, while the court had to decide on the remaining contentious issues.

The legal issues before the court included the allocation of parenting time for the child, the location of changeovers, and the obligations of the parents in relation to communication, medication administration, and other matters. The court also had to determine whether the agreed terms were in the best interests of the child and whether they complied with the requirements of the Family Law Act 1975.

The court considered the evidence presented by both parties and the welfare of the child. It found that the agreed terms were in the best interests of the child and complied with the Family Law Act. The court made orders for the child to spend equal time with each parent, with specific arrangements for Christmas, Easter, and Good Friday. The court also made orders for communication between the parents, medication administration, and other matters as agreed by the parties. The court discharged previous parenting orders and made new orders for equal shared parental responsibility and prohibited the parents from discussing family law proceedings with the child.

The court approved the agreed terms and made orders in line with the parties' agreement, while also making additional orders to ensure the welfare of the child and compliance with the Family Law Act. The court emphasised the importance of the parents working together to provide a stable and consistent environment for the child and ordered them to engage in family dispute resolution and counselling as necessary.

Orders

Orders of the court

[X] born [in] 2001 (“[X]”) spend equal time with each of his parents by living with them in alternate weeks from after school on Fridays until the commencement of school the following Friday.

(a) This Order is to take effect immediately so that [X] spend time with his mother commencing from after school on the first Friday after this decision.

[X] spend time with his mother from 5pm on 25 December 2010 until 5pm on 28 December 2010 and in each alternate year thereafter.

[X] spend time with his mother from 5pm on 23 December 2011 until 5pm on 25 December 2011 and in each alternate year thereafter.

[X] spend time with his mother from 6pm on Easter Sunday 2011 until 6pm on Easter Monday 2011 and in each alternate year thereafter.

[X] spend time with his mother from 10am on Good Friday 2012 until 6pm on Easter Sunday 2012 and in each alternate year thereafter.

ORDERS BY CONSENT

All previous parenting Orders be discharged.

The parents have equal shared parental responsibility for the child of the relationship, [X], born [in] 2001 (“the child”).

That on all school days changeovers shall occur at the child’s school and on non-school days at the paternal grandparents’ home.

Both parties, their servants and agents be and are hereby restrained by injunction from:

(a) Abusing, insulting belittling, rebuking or otherwise denigrating the other or any member of their family;

(b) Discussing Family Law or related proceedings to, with, or in the presence or hearing of the child, and from permitting any other person from doing so.

10.

In the event that the child suffers a serious injury or illness whilst in the care of one or other of the parties, the person whose care the child is in, will immediately notify the other of the details of the illness or injury and whether the child is or has received treatment and the nature of the treatment.

11.

Without admission, neither party shall consume illicit drugs whilst the child is in their care.

12.

Both parents authorise the school that the child attends to provide both parents with all school reports, photographs, newsletters and other documentation normally provided to parents and each parent be entitled to attend school events usually attended by parents.

13.

Each parent keep the other informed within 48 hours of any change to their residential address or telephone contact details.

14.

That if either parent intends to travel with the child outside of the State of Victoria they provide the other parent at least 30 days in advance of the trip with details of the proposed trip including itinerary and telephone and accommodation details for the duration of the trip.

15.

That neither parent, their servants and/or agents are permitted to change the child’s residence from the State of Victoria and/or remove the child from the State of Victoria for any period that exceeds the time the child is in their respective care without the expressed prior written consent of the other parent.

16.

Pursuant to s.65A(2) and s.62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

17.

That both parents have access to the child’s medical and allied health professionals and all such professionals are authorised to discuss the child’s issues with each parent.

18.

That each parent make available to the other parent any medications prescribed for the child to the other parent to administer during their period of care and the other parent shall thereafter administer the medication as prescribed or required.

19.

That the parties establish and use a communication book to communicate with one another on matters such as medical concerns, current routine, education, extra-curricular activities and any other matter to be brought to the attention of the other parent, and such book travel with the child between the parents’ residences.

20.

That the child continue to attend support and treatment by the Mid West Team of the Royal Children’s Hospital.

21.

The parties agree that these proposed Orders will be adhered to until the Orders are made by the Courts save for Order 1.

Notations

A. In order to address any issues around poor communication and working toward consistent parenting goals the parents agree to engage in Family Dispute Resolution whenever necessary.

B. Each parent will give a copy of these Orders to the child’s school and to any medical or allied health professionals involved with the child to serve as authority to them to give effect to these Orders.

C. Both parents agree that they will:

(a) Attend a post parenting separation course as soon as practical.

(b) Engage in individual counselling as soon as possible.

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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