Whitby & Hopkirk - [2009] FMCAfam 803

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITBY & HOPKIRK

[2009] FMCAfam 803

FAMILY LAW – Parental responsibility – implacable levels of conflict – best interests of children.

Family Law Act 1975 (Cth) Part VII, ss.60B, 60CA, 60CC(2), 60CC(3), (3)(a), (b), (c), (f), (g), (i), (j), (k), 60CC(4), 60CC(4A), 61DA, 65DAA

Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation (1983) 44 ALR 607; (1983) 70 FLR 447
Browne v Dunn (1893) 6 R 67
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
Mazorski v Albright (2007) 37 Fam LR 518
Monds & Mullan [2009] FMCAfam 58
3D Scaffolding Pty Limited v Commissioner of Taxation [2009] FCAFC 75
Jacks v Samson (2008) 221 FLR 307
Stuart & Stuart [2008] FMCAfam 177

T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8^th Annual Family Law Intensive, Sydney
R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131
J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16
H. Rhoades, “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform,” (2008) 36 Federal Law Review 279

Applicant:

MS WHITBY

Respondent:

MR HOPKIRK

File Number:

CAC 1521 of 2007

Judgment of:

Neville FM

Hearing dates:

13 & 14 July 2009

Date of Last Submission:

14 July 2009

Delivered at:

Canberra

Delivered on:

6 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms Godtschalk

Solicitors for the Applicant:

Watts McCray McGuinness Eley

Counsel for the Respondent:

Mr Hopkirk in person

ORDERS

That Orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 9A of the orders made in the Federal Magistrates Court at Canberra on 10 May 2007 be discharged.
That the Mother have sole parental responsibility for the children [X] born in 2001 and [Y] born in 2004 (“the children”).
That the children live with the Mother.
That the children spend time with the Father as follows:
(a)On each alternate weekend from after school Friday until before school on Monday;
(b)For half of the school term holidays, being the first half in years ending in a odd number and the second half in years ending in zero or an even number;
(c)For half of the Christmas school holiday period;
(d)On the Father’s birthday, on Father’s Day and each of the children’s birthdays.
For the purposes of calculating the school term holidays as referred to in Order 4:
(a)the first half of the school term holidays will commence after school on the last gazetted day of the school term in the Australian Capital Territory;
(b)the second half of the school term holidays will commence at 10:00am on the second Saturday after the last gazetted day of the school term;
(c)The “school term holidays” do not include the Christmas school holiday period.
In relation to the…

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 Whitby & Hopkirk

Details

AGLC: Whitby & Hopkirk [2009] FMCAfam 803
Case: [2009] FMCAfam 803
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Whitby & Hopkirk involved a dispute over the care, control, and residence of two children born in 2001 and 2004. The parents, referred to as the Mother and the Father, had previously been involved in a legal battle over the children’s living arrangements, with several orders made by the Federal Magistrates Court in 2007. This appeal before the Federal Circuit Court sought to review and potentially revise those orders, focusing on parental responsibility and the children's time-sharing arrangements.

The primary legal issues before the court included the allocation of sole parental responsibility, the determination of the primary residence of the children, and the establishment of a detailed time-sharing schedule between the parents. The court also had to address specific logistical aspects of the handovers, communication requirements between the children and the non-resident parent, and special provisions for holidays and birthdays.

The Federal Circuit Court, after reviewing the evidence and considering the best interests of the children, determined that the previous orders were no longer suitable. The court found that the Mother should have sole parental responsibility and that the children should primarily reside with her. It established a time-sharing schedule that allowed the Father to spend time with the children on alternate weekends, half of the school term holidays, and certain special occasions. The court also detailed specific arrangements for handovers, communication, and holiday periods to ensure the children's welfare and to maintain a stable environment. The orders were meticulously crafted to balance the needs of both parents and the children, incorporating provisions for flexibility and stability in the children's lives.

The court’s final orders discharged the previous orders, granting sole parental responsibility to the Mother, specifying the primary residence of the children with her, and setting out a comprehensive time-sharing schedule with the Father. It also included detailed provisions for handovers, communication, and special occasions, ensuring that the children's best interests were prioritised in all decisions.

Orders

Orders of the court

That Orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 9A of the orders made in the Federal Magistrates Court at Canberra on 10 May 2007 be discharged.

That the Mother have sole parental responsibility for the children [X] born in 2001 and [Y] born in 2004 (“the children”).

That the children live with the Mother.

That the children spend time with the Father as follows:

(a) On each alternate weekend from after school Friday until before school on Monday;

(b) For half of the school term holidays, being the first half in years ending in a odd number and the second half in years ending in zero or an even number;

(d) On the Father’s birthday, on Father’s Day and each of the children’s birthdays.

For the purposes of calculating the school term holidays as referred to in Order 4:

(a) the first half of the school term holidays will commence after school on the last gazetted day of the school term in the Australian Capital Territory;

(b) the second half of the school term holidays will commence at 10:00am on the second Saturday after the last gazetted day of the school term;

In relation to the Christmas school holiday period referred to in Order 4(c):

(a) When the Christmas school holiday period commences in a year ending in an odd number, the children will spend the first two week period with the Mother, the next two week period with the Father, the next week with the Mother and the following week with the Father;

(b) When the Christmas school holiday period commences in a year ending in a zero or an even number, the children will spend the first two week period with the Father, the next two week period with the Mother, the next week with the Father and the following week with the Mother.

For the purposes of Order 6:

(a) the “first two week period” commences after school on the last gazetted day of the final school term in the Australian Capital Territory;

(b) the “next two week period” commences at 10:00am on the third Saturday after the last gazetted day of the final school term in the Australian Capital Territory;

(c) the “next week” commences at 10:00am on the Saturday that falls 14 days after the commencement of the period referred to in Order 7(b) herein;

(d) the “following week” commences at 10:00am on the Saturday that falls 7 days after the commencement of the period referred to in Order 7(c) herein;

(e) if the children are with the Father during the “following week” it concludes at 5:00pm on the Saturday that falls 7 days after the commencement of the period referred to in Order 7(d) herein.

That for the purpose of these Orders:

(a) If the children are ordinarily attending school on a day when handover is scheduled to occur, then handover will be effected by the parent with whom the children will be spending time collecting the children from their school at the commencement of that time and that parent delivering the children to their school at the conclusion of that time, and the other parent is restrained from being present during that handover;

(b) If handover is scheduled to occur at a time or on a day when the children do not ordinarily attend school, then it will occur at [M] Contact and Changeover Centre (“[M]”);

(c) If [M] is unavailable or unable facilitate handover at any time or day when handover is scheduled to occur, then handover will occur in the front foyer of [T] Police Station;

(d) If the Mother or the Father are unable to attend handover in person then they may arrange for an agent of their choosing to collect or deliver the children, and the other parent will handover the children to that agent;

(e) If handover is scheduled to occur on a day when either one or both the children do not attend school due to illness or some other reasonable excuse, then the parent who is caring for the child or children on that day shall notify the other parent by SMS text message AND email, by no later than 12 noon on that day, and handover shall occur at the front foyer of [T] Police Station at 4:00pm.

In relation to the children’s birthdays:

(a) if either of the children’s birthdays fall on a weekday (other than on a day when handover is scheduled to occur) then both children will spend time with the parent with whom they are not with on that day from after school until 5:30pm that day and handover at the conclusion of that time will occur at the front foyer of [T] Police Station;

(b) if either of the children’s birthdays fall on the weekend then both the children will spend time with the parent with whom they are not with that day from 9:00am until 12 noon on that day and handover will occur at the front foyer of [T] Police Station.

10.

In the event that the Mother’s birthday or Mother’s Day occurs on a day when the children are with the father in accordance with these Orders, Order 3 shall be suspended and the children shall spend time with the Mother from 3:00pm to 7:00pm if it falls on a week day and from 9:00am to 5:00pm if it falls on a weekend.

11.

In relation to the Father’s birthday and Father’s Day, if the children are with the Mother in accordance with these Orders, the children shall spend time with the Father from 3:00pm to 7:00pm if it falls on a week day and from 9:00am to 5:00pm if it falls on a weekend

12.

On Christmas Day, the parent with whom the children are with on that day shall ensure that the children contact the other parent by telephone at 10:00am Canberra time, for a period of no less than 20 minutes, and shall arrange for the children to have privacy during that time.

13.

Order 4(a) is suspended during any school holiday period, including the Christmas school holiday period, and:

(a) Order 4(a) will resume operation at the conclusion of any school term holiday period on the first Friday of the school term in years ending in an odd number and the second Friday of the school term in years ending in zero or an even number, and;

(b) Order 4(a) will resume operation at the conclusion of the Christmas holiday period on the first Friday of the school term in years ending in an odd number and the second Friday of the school term in years ending in a zero or an even number.

14.

During the school term the children will communicate with the Father by telephone on each alternate Thursday at 7.00pm, for a period of no less than 20 minutes, and for that purpose the Mother will ensure that the children call the Father and will arrange for the children to have privacy during that time.

15.

During the school holidays, including the Christmas school holiday period, the parent with whom the children are with shall ensure that the children contact the other parent by telephone on one occasion each week, being at 6:30pm on a Wednesday, for a period of no less than

20 minutes, and that parent shall arrange for the children to have privacy during that time.

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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