YARWOOD & SHORE - [2012] FMCAfam 1440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YARWOOD & SHORE

[2012] FMCAfam 1440

FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – where equal time between parents not sought – substantial and significant time – where final hearing listed for 3 April 2013 – three children aged 9, 7 and 4 years.
FAMILY LAW – Children – passport – Order for delivery of passport – application to place children’s names on Airport Watch List – no necessity for orders to be made.
FAMILY LAW – Children – name – Application to change children’s surname – not appropriate to change the surname of child in an interim order.
FAMILY LAW – Property – property orders – caveat – proceeds of sale of parties’ former home.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA, 65Y, 67ZD
Crimes (Domestic and Personal Violence) Act 2007 (Cth), s.16

Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
John & Dane [2007] FMCAfam 93
Klein & Wright [2007] FMCAfam 360

Applicant:

MR YARWOOD

Respondent:

MS SHORE

File Number:

SYC 2033 of 2012

Judgment of:

Scarlett FM

Hearing date:

19 November 2012

Date of Last Submission:

19 November 2012

Delivered at:

Sydney

Delivered on:

19 December 2012

REPRESENTATION

Solicitors for the Applicant:

Armstrong Legal

The Respondent:

In person

ORDERS

UNTIL FURTHER ORDER

The children Z born (omitted) 2003, X born (omitted) 2005 and Y born (omitted) 2008 are to live with the Respondent Mother.
The Applicant and the Respondent are to have equal shared parental responsibility for the children Z, X and Y.
The children are to spend time with the Applicant father as follows:
(a)Each alternate weekend during the school term from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;
(b)For one half of all of the school holidays including the Christmas/January school holidays being the first half of the holidays in 2012 and all even numbered years thereafter and the second half of the school holidays in 2013 and all odd numbered years thereafter;
(c)On the weekend that includes Father’s Day in each year from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;
(d)On each of the children’s birthdays for a period of not less than two (2) hours at which time all of the children would spend time with the father PROVIDED THAT if any of the children’s birthdays falls on a weekend when the children are spending time with the father in accordance with these Orders then all three of the children will spend time with the mother for a period of not less than two (2) hours on that day;
(e)The father’s time with the children as provided by Order (3)(b) will be suspended 5:00 pm on…

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.

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Details

AGLC: YARWOOD & SHORE [2012] FMCAfam 1440
Case: [2012] FMCAfam 1440
Decision Date: 19 December 2012

CaseChat Overview and Summary

The case of Yarwood & Shore involves the parents of three children, Z, X, and Y, who were born in 2003, 2005, and 2008 respectively. The dispute between the parents, referred to as the Respondent Mother and the Applicant Father, concerns the living arrangements and parenting time for their children. The Family Court of Australia was tasked with determining the best living arrangements for the children and allocating parental responsibilities between the parents.

The legal issues before the court included deciding where the children should primarily reside, establishing a parenting schedule for the father, and outlining the responsibilities of each parent to ensure the children's wellbeing. Additionally, the court had to address how communication and information sharing between the parents and children should be managed, as well as the handling of the parents' former home and its sale proceeds.

The court's reasoning was grounded in the principle of the best interests of the children, which is the paramount consideration under the Family Law Act. The court recognised the importance of maintaining a strong relationship between the children and both parents, while also ensuring stability and continuity in their lives. The detailed parenting orders reflect a balanced approach that allows the children to maintain close ties with both parents, with specific provisions to manage changeovers, holidays, and special occasions. The court also addressed the need for cooperation and respect between the parents, prohibiting criticism or excessive alcohol consumption in the presence of the children. Furthermore, the court ordered the withdrawal of a caveat on the former family home and directed the handling of its sale proceeds.

In summary, the court has ordered that the children will primarily reside with the Respondent Mother but will spend significant time with the Applicant Father, with detailed schedules for weekends, school holidays, and birthdays. Both parents share equal parental responsibility, and various provisions ensure effective communication and cooperation between the parents. Additionally, the court has directed the handling of the sale proceeds from the former family home and the withdrawal of a caveat on its title.

Orders

Orders of the court

UNTIL FURTHER ORDER

The children Z born (omitted) 2003, X born (omitted) 2005 and Y born (omitted) 2008 are to live with the Respondent Mother.

The Applicant and the Respondent are to have equal shared parental responsibility for the children Z, X and Y.

The children are to spend time with the Applicant father as follows:

(a) Each alternate weekend during the school term from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;

(b) For one half of all of the school holidays including the Christmas/January school holidays being the first half of the holidays in 2012 and all even numbered years thereafter and the second half of the school holidays in 2013 and all odd numbered years thereafter;

(c) On the weekend that includes Father’s Day in each year from immediately after school or preschool as the case may be on Friday until the commencement of school or preschool on the following Tuesday morning;

(d) On each of the children’s birthdays for a period of not less than two (2) hours at which time all of the children would spend time with the father PROVIDED THAT if any of the children’s birthdays falls on a weekend when the children are spending time with the father in accordance with these Orders then all three of the children will spend time with the mother for a period of not less than two (2) hours on that day;

(e) The father’s time with the children as provided by Order (3)(b) will be suspended 5:00 pm on Christmas Eve 24 December and 2:00 pm Christmas Day 25 December 2012 during which period the children will spend time with the mother.

Changeovers during school holiday periods, on the children’s birthdays and on other days that do not fall on a school day will take place at an agreed approximate midpoint between the homes of the father and the mother and in default of agreement at the McDonalds Family Restaurant in (omitted).

Order (3)(a) is suspended on the weekend that includes Mother’s Day from after school or preschool on Friday until the commencement of school on the following Tuesday.

If the father is required to work away from the Sydney area then the arrangements in Order (3)(a) are to be suspended until his return.

When the children are spending time with the father, he is to deliver them to and collect them from any of their extra-curricular activities or sporting activities as agreed between the parties.

The father is to purchase a suitable change of clothing for the children for such times as they are spending with him and ensure that he returns any clothing to the mother that came with the children.

Each parent is to facilitate telephone communication between the children or any of them and the other parent at all reasonable times.

10.

The father is at liberty to forward letters, emails, mail and other items to the children and the mother is to hand those items to the children unopened.

11.

The father is to make arrangements with the Principal of the school attended by the children or any of them so that he may receive copies of all school reports, circulars, newsletters, information about school photographs and other communications usually provided to parents of children attending that school.

12.

Each parent is at liberty to telephone all or any of the children on at least two (2) occasions each week when the children are on holiday with the other parent.

13.

The parties are to provide to each other a telephone number and address at which the children may be contacted during periods when the children are in the care of the other party during any holiday time no later than seven (7) days prior to the commencement of that time.

14.

If either parent changes his or her address that party must notify the other party two (2) weeks prior to any such move of the new address and landline telephone number.

15.

The mother is to provide the father with the names and addresses of the children’s treating doctors and dentist within seven (7) days.

16.

Each of the parents must ensure that the other parent is notified promptly of any medical emergency or significant illness suffered by the children or any of them including particulars sufficient to enable both parents to be consulted with respect to and be fully informed about the illness or condition and any treatment recommended or provided.

17.

The Applicant and the Respondent are restrained by injunction from criticising or denigrating each other or any member of the other parent’s family in the presence or hearing of all or any of the children or permitting any third party to do so.

18.

Neither party is to drink alcohol to excess at any time when the children are in their care or for twelve (12) hours beforehand.

19.

The Respondent is do all acts and things necessary to withdraw the caveat over the title of the parties’ former home at Property C in the state of New South Wales within seven (7) days.

20.

The net proceeds of sale of the parties’ former home are to be held by the Applicant’s solicitors in a controlled moneys account until the final hearing or further Order of the Court.

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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