Withnell and Withnell - [2008] FMCAfam 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WITHNELL & WITHNELL

[2008] FMCAfam 28

FAMILY LAW – Parenting – equal time – substantial and significant time – weight to be attached to evidence from the independent expert – young children.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA
Family Law Amendment (Equal Shared Parental Responsibility) Act 2006

Goode & Goode (2006) FamCA 1346
Newlands and Newlands [2007] FamCA 168

Applicant:

MR WITHNELL

Respondent:

MS WITHNELL

File number:

ADC3559 of 2007

Judgment of:

Kelly FM

Hearing dates:

8 and 9 November 2007

Date of last submission:

9 November 2007

Delivered at:

Adelaide

Delivered on:

18 January 2008

REPRESENTATION

Counsel for the Applicant:

Ms D Morosini

Solicitors for the Applicant:

Di Morosini & Co

Counsel for the Respondent:

Ms T Lewis

Solicitors for the Respondent:

Stuart Andrew

ORDERS

That the parents share equally in parental responsibility for the children S born in 2000 and B born in 2004.
That during school terms the children live with each parent as follows:
(a)with the father:
(i)in alternate weeks commencing on the first Wednesday of each school term from 12 noon or the conclusion of school or kindergarten on Wednesday until 6.00 pm on Sunday, or 6.00 pm Monday in the event of a public holiday;
(ii)from 12 noon or the conclusion of school or kindergarten on Wednesday until the commencement of school or kindergarten on Friday in intervening weeks commencing on the second week in each school term;
(b)with the mother at all other times.

UPON NOTING the short school holidays are defined as commencing on the last day of the school term and concluding at 6.00 pm on the day prior to school resuming

That during the short school holidays the children live with each parent as follows:
(a)with the mother:
(i)for the first half of the short school holidays in 2008 and each alternate year thereafter from the conclusion of school on the last day of the school term until 6.00pm on the following Friday;
(ii)for the second half of the short school holidays in 2009 and each alternate year thereafter from 10.00am on the middle Sunday until 6.00pm on the following Sunday (or the last day of the holiday period if not a Sunday).
(b)with the father:
(i)for the second half of the short school holidays in 2008 and each alternate year thereafter, from 6.00pm on the second Friday until 6.00pm on the last Sunday (or the last day of the holiday period if not a Sunday);
(ii)for the first half of each short school holiday period in 2009 and each alternate year thereafter from the conclusion of school on the last day of school term until 10.00am on the middle Sunday;
That during the Christmas school holidays the children live with each parent on an alternate week basis as follows:
(a)with the father in the first week of the 2008 holidays (and each alternate year thereafter);
(b)with the mother in the first week of the 2009 holidays (and each alternate year…

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 Withnell and Withnell

Details

AGLC: Withnell and Withnell [2008] FMCAfam 28
Case: [2008] FMCAfam 28
Decision Date: 18 January 2008

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Withnell and Withnell was adjudicated, concerning the parenting arrangements for two children, S and B, born in 2000 and 2004 respectively. The parents, having separated, sought a detailed parenting plan that would provide a stable and equitable arrangement for the children’s upbringing.

The court was tasked with determining a comprehensive parenting schedule that balanced the needs of the children with the rights and responsibilities of both parents. It needed to establish a detailed allocation of time for the children to spend with each parent during school terms, short school holidays, and major holiday periods, such as Christmas. Additionally, the court had to outline provisions for special occasions, communication between the parents, and their involvement in the children's extracurricular activities and medical care.

In delivering its judgment, the court meticulously outlined a shared parenting arrangement, ensuring that both parents had significant and meaningful time with the children. The court recognised the importance of both parents being involved in the children’s lives and established a schedule that provided a sense of stability and routine. The detailed orders included specific times for handovers, special occasions, and communication protocols, reflecting a balanced approach that aimed to support the children's welfare and development.

The final orders mandated an equal sharing of parental responsibility and set out a precise schedule for the children’s time with each parent during different periods of the year, including school terms, short school holidays, and major holidays. The court also required the parents to engage in family counselling and to maintain open communication and cooperation in the children's upbringing.

Orders

Orders of the court

That the parents share equally in parental responsibility for the children S born in 2000 and B born in 2004.

That during school terms the children live with each parent as follows:

(a) with the father:

(i) in alternate weeks commencing on the first Wednesday of each school term from 12 noon or the conclusion of school or kindergarten on Wednesday until 6.00 pm on Sunday, or 6.00 pm Monday in the event of a public holiday;

(ii) from 12 noon or the conclusion of school or kindergarten on Wednesday until the commencement of school or kindergarten on Friday in intervening weeks commencing on the second week in each school term;

(b) with the mother at all other times.

UPON NOTING the short school holidays are defined as commencing on the last day of the school term and concluding at 6.00 pm on the day prior to school resuming

That during the short school holidays the children live with each parent as follows:

(a) with the mother:

(i) for the first half of the short school holidays in 2008 and each alternate year thereafter from the conclusion of school on the last day of the school term until 6.00pm on the following Friday;

(ii) for the second half of the short school holidays in 2009 and each alternate year thereafter from 10.00am on the middle Sunday until 6.00pm on the following Sunday (or the last day of the holiday period if not a Sunday).

(b) with the father:

(i) for the second half of the short school holidays in 2008 and each alternate year thereafter, from 6.00pm on the second Friday until 6.00pm on the last Sunday (or the last day of the holiday period if not a Sunday);

(ii) for the first half of each short school holiday period in 2009 and each alternate year thereafter from the conclusion of school on the last day of school term until 10.00am on the middle Sunday;

That during the Christmas school holidays the children live with each parent on an alternate week basis as follows:

(a) with the father in the first week of the 2008 holidays (and each alternate year thereafter);

(b) with the mother in the first week of the 2009 holidays (and each alternate year thereafter);

(d) this order is subject to paragraph 5 with respect to Christmas arrangements.

That the children spend further time with each parent as follows:

(a) with the father:

(i) from 10.00am until 6.00pm on Father’s Day each year;

(ii) in alternate years from the conclusion of school Maundy Thursday until 6.00pm Easter Saturday commencing in 2008 and in intervening years from 6.00pm Easter Saturday until 6.00pm Easter Monday commencing in 2009 notwithstanding any other orders for school holiday time with either parent;

(iii) in alternate years from 5.00pm Christmas Eve until 2.00pm Christmas Day commencing in 2008;

(iv) in intervening years from 2.00pm Christmas Day until 11.00am Boxing Day commencing in 2009.

(b) with the mother:

(i) from 10.00 am until 6.00pm on Mother’s Day each year;

(ii) in alternate years from the conclusion of school Maundy Thursday until 6.00pm Easter Saturday commencing in 2009 and in intervening years from 6.00pm Easter Saturday until 6.00pm Easter Monday commencing in 2008 notwithstanding any other orders for school holiday time with either parent;

(iii) in alternate years from 2.00pm Christmas Day until 11.00am Boxing Day commencing in 2008;

(iv) in intervening years from 5.00pm Christmas Eve until 2.00pm Christmas Day commencing in 2009;

(c) in the week following Christmas Day with each parent at times to be agreed between the parties to facilitate contact with extended family and in default of agreement the children spend time with the parent with whom they are not otherwise living from 10.00am on 27 December until 6.00pm on 28 December;

(d) on the children’s birthdays and each parent’s birthday for a period of two (2) hours if a school day and four (4) hours if a non school day;

(e) at other times including special occasions as may be agreed between the parties.

That each parent facilitate reasonable telephone communication between the children and the other parent as follows:

(a) with the father each Monday evening at 7.00pm when the children are in the mother’s care;

(b) with the mother each Thursday evening at 7.00pm when the children are in the father’s care;

(d) at other times when requested by the children.

That both parents are at liberty to attend:

(a) any school, sporting or other extracurricular events and activities to which parents are usually invited; and

(b) any medical or health related appointments for either child.

That both parents are at liberty to arrange direct with any school to ensure they each receive copies of all school notices, newsletters and reports.

That each parent shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the child is living with or spending time with that party.

10.

That the parties establish a communication book to exchange information about the children’s care, welfare and development.

11.

Pursuant to s.13C of the Family Law Act 1975 the parties participate in family counselling within three months from the date of judgment, to address their future co-parenting relationship and improve future communication about parenting issues.

12.

That the mother provide all photographs of the children taken during the parties’ marriage to the father within fourteen (14) days, to enable him to obtain copies of the photographs, provided that the father ensure that all the photographs are returned to the mother in good order and repair within a further fourteen (14) days.

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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