Wilcox and Wilcox - [2010] FMCAfam 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILCOX & WILCOX

[2010] FMCAfam 966

FAMILY LAW – Children – parental responsibility – with whom a child lives.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG , 61DA, 65DAA, 65Y, 69ZW

Pitken & Hendry [2008] FamCA 186
AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238

Marvel [2010] FamCAFC 101

Goode & Goode (2006) FLC 93-286
DS & V [2003] FamCA 280
Dylan & Dylan [2007] FamCA 842

Applicant:

MR WILCOX

Respondent:

MS WILCOX

File Number:

PAC 1483 of 2009

Judgment of:

Harman FM

Hearing date:

19-20 August 2010

Delivered at:

Parramatta

Delivered on:

20 August 2010

REPRESENTATION

Counsel for the Applicant:

Ms Conte-Mills

Solicitors for the Applicant:

Fay Rose Legal

Counsel for the Respondent:

Ms Karagiannis

Solicitors for the Respondent:

Legal Aid NSW

ORDERS

As and from 8 am Wednesday, 25 August 2010 I discharge all existing parenting orders with respect to the child [X Lewis] born in 2005 who shall hereinafter in these orders and otherwise be referred to as [X Wilcox].
[X]’s parents, Mr Wilcox and Ms Wilcox, are to have equal shared parental responsibility for him.
[X] shall during school terms live with his Father;
(a)Each alternate weekend from 3 pm or the conclusion of school Friday until 9 am or the commencement of school the following Tuesday, extending to Wednesday in the event that Monday is a public holiday or a pupil free day; and
(b)In each intervening week from the conclusion of school Monday or 3 pm until the commencement of school Tuesday or 9 am.
(c)THE COURT NOTES that the first period of weekend time (Friday to Tuesday) shall commence the weekend 3 September 2010 and the first period of Monday to Tuesday time shall commence Monday 30 August 2010.
(d)Commencing 2011 for one half of each short New South Wales school holiday period as agreed between the parents or failing agreement, for the second half commencing 6 pm on the middle Saturday concluding 6 pm on the final Sunday before the commencement of the new school term.
(e)For the Christmas 2010/2011 school holidays:
(a)From 10 am 18 December until 3 pm 25 December 2010; and
(b)From 10 am 2 January until 6 pm 12 January 2011.
(f)Commencing in 2011 and each school year thereafter for one half of the Christmas school holidays in each year alternating between the first and second half of those holidays and provided that:
(a)For the Christmas school holidays commencing in 2011 [X] shall be with his Father for the second half of the Christmas school holidays; and
(b)In any year when [X] is with his Father for the first half of the Christmas school holidays that [X] shall spend time with his Mother from 3pm Christmas Day until 6 pm Boxing day (and the same provision shall apply for [X] to spend time with his Father in any year when [X] is spending the first half of the holidays with his Mother).
(g)From 6 pm…

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 Wilcox and Wilcox

Details

AGLC: Wilcox and Wilcox [2010] FMCAfam 966
Case: [2010] FMCAfam 966
Decision Date

CaseChat Overview and Summary

The case of Wilcox and Wilcox involved parenting applications brought by the parties seeking orders with respect to their young son, [X], who was not yet five years of age. The court was required to decide issues of parental responsibility, time-sharing arrangements, and communication between the parties. The court found that both parents had a genuine and reasonable assessment of what was in their child's best interests, and that [X] had a meaningful relationship with each parent. The court ordered equal shared parental responsibility for [X], with specific arrangements for time-sharing and communication between the parties. The court also addressed issues of family violence, cultural background, and the need for future proceedings to be avoided. The final orders included provisions for travel to Fiji, a change of [X]'s surname, and the explanation of the orders to [X] by a family consultant.

Orders