Windsor & Kava - [2012] FMCAfam 1221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WINDSOR & KAVA

[2012] FMCAfam 1221

FAMILY LAW – Parenting – two children, boys aged 8 and 3 – parental responsibility – high conflict between parents – parents do not communicate – time children should spend with father – whether children should spend overnight time with father.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DAC(2) and (3)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424
U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112

KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224

Applicant:

MS WINDSOR

Respondent:

MR KAVA

File Number:

PAC 3320 of 2010

Judgment of:

Halligan FM

Hearing dates:

17, 18 November 2011, 2, 3, 10 and 11 October 2012

Date of Last Submission:

11 October 2012

Delivered at:

Parramatta

Delivered on:

11 October 2012

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

In Person

Counsel for the Independent Children’s Lawyer :

Mr Jackson

ORDERS

All prior parenting orders in relation to the children [X] born [in] 2004 and [Y] born [in] 2009 are discharged.
The mother have sole parental responsibility of the children, [X] born [in] 2004 and [Y] born [in] 2009.
The children live with the mother.
The children spend time with the father as follows:
(a)each Christmas Day from 9am until 5pm;
(b)each Father’s Day from 9am until 5pm;
(c)on the children’s birthdays ,from 3pm until 7pm;
(d)for the first six months from the date of these orders, being every alternative weekend, from Friday at 3pm until the following Saturday at 5pm, commencing on 19 October 2012;
(e)for the following six months ,being every alternative weekend from Friday at 3pm until the following Sunday at 5pm,and thereafter;
(f)thereafter, every alternate weekend from Friday at 3pm until the following Monday at 9am, or Tuesday 9am if the Monday is a public holiday;
(g)commencing with the school holidays at the end of Term 1, 2015, for the second half of all school holidays, and the father’s time under the preceding sub-paragraph shall be suspended during school holidays on the commencement of this provision.
The fathers time with the children if relevant, be suspended from 9am to 5pm on Mother’s Day.
For the purpose of the school holiday orders as referred to above at sub-paragraph 4(g):
(a)the school holidays shall be defined to commence on the last day of school term prior to the school holidays, and shall be defined to conclude on the last day of such school holidays.
The place of changeover is to take place at either:
(a)the McDonald’s Restaurant located at [B], or
(b)the children’s school if such a changeover takes place on a weekday…

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 Windsor & Kava

Details

AGLC: WINDSOR & KAVA [2012] FMCAfam 1221
Case: [2012] FMCAfam 1221
Decision Date: 11 October 2012

CaseChat Overview and Summary

Windsor & Kava was a parenting case heard by the Family Court of Australia. The primary dispute involved the allocation of parental responsibility and time-sharing arrangements for the two children, [X] born in 2004 and [Y] born in 2009. The mother sought sole parental responsibility and primary residence for the children, while the father sought joint parental responsibility and more time-sharing with the children. The court was required to weigh the best interests of the children as the paramount consideration when making its determinations.

The court addressed several key issues, including the allocation of parental responsibility, the determination of primary residence, the specific time-sharing arrangements, and the need for any additional orders to support the children's well-being and ongoing relationship with both parents. In making its decision, the court considered the evidence presented regarding the parents' ability to provide for the children's physical, emotional, and educational needs, as well as the children's own wishes and preferences, insofar as they were ascertainable.

The court determined that the best interests of the children would be served by granting sole parental responsibility to the mother, with the children residing with her. However, the court also found that it was in the children's best interests to have a substantial and meaningful relationship with their father. As a result, the court established a detailed and structured time-sharing arrangement, which included regular weekend visits, special days such as Christmas and the children's birthdays, and specific provisions for school holidays. The court also imposed various other conditions to support the children's ongoing relationship with both parents, including communication requirements, changeover locations, and restrictions on certain activities and behaviours.

In summary, the court's orders granted sole parental responsibility to the mother, established a detailed time-sharing arrangement for the father, and imposed a range of additional conditions to support the children's well-being and ongoing relationship with both parents. The court's decision was based on a thorough consideration of the evidence and the best interests of the children.

Orders

Orders of the court

All prior parenting orders in relation to the children [X] born [in] 2004 and [Y] born [in] 2009 are discharged.

The mother have sole parental responsibility of the children, [X] born [in] 2004 and [Y] born [in] 2009.

The children live with the mother.

The children spend time with the father as follows:

(a) each Christmas Day from 9am until 5pm;

(b) each Father’s Day from 9am until 5pm;

(d) for the first six months from the date of these orders, being every alternative weekend, from Friday at 3pm until the following Saturday at 5pm, commencing on 19 October 2012;

(e) for the following six months ,being every alternative weekend from Friday at 3pm until the following Sunday at 5pm,and thereafter;

(f) thereafter, every alternate weekend from Friday at 3pm until the following Monday at 9am, or Tuesday 9am if the Monday is a public holiday;

(g) commencing with the school holidays at the end of Term 1, 2015, for the second half of all school holidays, and the father’s time under the preceding sub-paragraph shall be suspended during school holidays on the commencement of this provision.

The fathers time with the children if relevant, be suspended from 9am to 5pm on Mother’s Day.

For the purpose of the school holiday orders as referred to above at sub-paragraph 4(g):

(a) the school holidays shall be defined to commence on the last day of school term prior to the school holidays, and shall be defined to conclude on the last day of such school holidays.

The place of changeover is to take place at either:

(a) the McDonald’s Restaurant located at [B], or

(b) the children’s school if such a changeover takes place on a weekday during a school term period.

Each party shall do all things necessary to ensure that the other party is sent directly from their school, copies of all school reports, weekly bulletins, correspondence and school photograph applications.

Each other party shall inform the other in a timely manner, all significant medical events, significant educational and sporting events, directly relevant to the children.

10.

Within 7 days from the date of these orders, the parties each contact Unifam Parramatta and do all things necessary to apply to be accepted in the “Keeping the Contact Program” and if accepted each party shall attend all appointments as directed by Unifam Parramatta.

11.

Within 7 days from the date of these orders, the parties each contact Relationship Australia and do all things necessary to enrol in such parenting group if available, focusing on improving parental interaction as is recommended by that organisation, and thereupon each party will attend all appointments required by Relationships Australia.

12.

The mother shall not engage the children in any extra curricular activities that may occur during times the children are to be with the father under these orders without the father's prior written consent.

13.

The mother shall cause the children to telephone the father at 6.00 pm each Monday, Wednesday and Friday that the children are not spending time with him and the father shall make himself available to receive the call from the children at those times.

14.

Each party is restrained from:

(a) denigrating the other party or members of the other party’s family in the presence or hearing of the children and shall ensure no other person does so;

(b) discussing these proceedings with or in the presence or hearing of the children and from showing the children any documents filed in or prepared for these proceedings, and shall ensure no other person does so; and

15.

Both parties shall do all things necessary to ensure the children are known at all times by the last name of Kava.

16.

Otherwise, all outstanding applications are dismissed.

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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