Donate Child Support Calculator
Skip navigation

Judgement - Justice David Halligan

The question is.. are these orders adequate in relation to time?

Orders made 20 October 2006

The full judgement can be read at Austlii:

KML & RAE [2006] FMCAfam 528 (20 October 2006)

The question is… are these orders adequate in relation to time? Is this a ground breaking decision / interpretation that indicates where future cases might be heading?
Secretary SPCA said
I wonder if this case could withstand an appeal if the father feels the spent with orders are inadequate. The judgement is interesting ESPECIALLY around where his honour went with his interpretation of 65DAA.
The Judgement said
While the provisions referred to in B & B have been amended, and there are additional provisions under the SPR Act amendments which impinge on the decision making process, I consider the guidance provided by the above quoted passage to remain relevant.

70. Consistent with this guidance, section 60CA provides that the child's best interests are paramount. In deciding the competing parenting applications, the court must identify and go through each of the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) which appear to be relevant, and discuss their significance and weight, and perform the same task in relation to the matters in s.60B which appear relevant or which may guide that exercise. The court must then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.

71. In deciding how best to promote the child's interests when determining parenting proceedings, the court is not limited to the proposals of the parties (U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224). However, if contemplating making orders materially different to those sought by either party, the court must afford both parties procedural fairness by clearly flagging what is in contemplation and affording both parties the opportunity to address the court on them (Bolitho & Cohen, above).

This in my view is particularly relevant in considering the qualifications placed on the court's discretion under section 65D(1) to make such parenting order as it thinks fit.

72. Section 65D(1) is subject to sections 61DA and 65DAB. Section 61DA establishes a rebuttable presumption that it is in a child's best interests for the child's parents to have equal shared parental responsibility for the child. Section 65DAA then provides that if a parenting order provides, or is to provide, that a child's parents are to have equal shared parental responsibility for the child, the court must consider the option of the child spending equal time with each parent. If the court does not make such an order, it must then consider the option of the child spending substantial and significant time with each parent. But in each case, the court must consider whether the child spending equal time, or substantial and significant time, with each parent would be in the child's best interests, and then the court must consider whether such an arrangement is reasonably practicable. It is only if either option is in the child's best interests and practicable that the court must then consider making such an order.

73. The effect of sections 61DA and 65DAA in my view is that in every parenting case, the court must consider making an equal shared parental responsibility order, whether sought by a party or not. And if such an order exists or is to be made, the court must consider the options of equal time or substantial and significant time, whether either party seeks such orders or not. Consistent with U & U and Bolitho & Cohen, above, in considering these options where they form no part of the proposals of any party or the Independent Children's Lawyer, the court must ensure the attention of the parties and the Independent Children's Lawyer are drawn to these options, and that they are given the opportunity to adduce evidence relevant to them and address the court on them.

74. Neither party in this case initially sought an order for equal shared parental responsibility. However, when I raised the effect of 61DA, counsel for the husband indicated the husband did seek such an order. The wife opposed such an order. I will turn to the provisions of sections 61DA and 65DAA in more detail as relevant later in these reasons.

75. The further qualification on the courts power to make such parenting order as it thinks fit imposed by section 65D is section 65DAB, which requires the court to have regard to the terms of the most recent parenting plan (if any) the child's parents may have entered into, to the extent the plan relates to the child, if doing so would be in the child's best interests. The parties have not entered into a parenting plan in this case.

76. The issues therefore that arise for determination in the parenting aspect of this case are firstly, whether or not the presumption that equal shared parental responsibility is in the children's best interests has been rebutted and if so what if any different order should be made as to parental responsibility; and secondly, what time arrangements for the children with each of the parents would best promote the children's interests, the options being equal time as sought by the husband, some regime of substantial and significant time if an equal shared parenting order is to be made and an equal time order is not made, the wife's proposals, or some alternative arrangement. There also arises an issue whether the wife's proposals meet the requirements of the Act for substantial and significant time.
The ORDERS said
(1) RAE (the husband) and KML (the wife) shall have equal shared parental responsibility for RH-OE born 11 July 1992 and JLE born 26 August 1993 (the children).

(2) The children shall live with the wife. This order shall take effect on the parties ceasing to live at the same address.

(3) The children shall spend time with the husband:

a) during school terms, from after school Friday to before school Monday each fortnight commencing the first Friday after the parties cease living at the same address, and recommencing on the first Friday of each school term thereafter;

b) during school terms, from after school Wednesday to before school Thursday each week, commencing on the first Wednesday after the parties cease living at the same address;

c) commencing in the first school holidays after the parties cease living at the same address, for half of all school holidays as agreed between the parties or failing agreement, for the second half of school holidays commencing in 2006 and each alternate year thereafter and for the first half of school holidays commencing in 2007 and each alternate year thereafter.

(4) Commencing when the parties cease living at the same address, despite order (3), the children shall spend time with:

a) the husband on Father's Day from 9am to 6pm;

b) the wife on Mother's Day from 9am to 6pm;

c) the husband on the husband's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be spending time with the husband under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be spending time with the husband under these orders;

d) the wife on the wife's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be living with the wife under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be living with the wife under these orders;

e) with the husband for 3 hours as agreed on each of the children's birthdays if not otherwise spending time with the children under these orders; and

f) with the wife for 3 hours as agreed on each of the children's birthdays if the children are not otherwise living with her under these orders.

(5) By consent, unless the husband's time with the children under these orders starts or ends before or after school, the husband shall collect the children from the wife's residence at the commencement of his time with the children, and the wife shall collect the children from the husband's residence at the conclusion of his time with the children.

(6) Where the children's time with the husband under these orders starts or ends before or after school, the husband shall collect the children from or return the children to their respective schools.
    
(7) By consent, the husband and the wife each shall not denigrate the other or the partner of the other in the presence or hearing of the children.

(8) By consent, the parties may provide a copy of these orders to the children's schools.
    
(9) By consent, each party shall be at liberty to attend the children's school (regardless of whether the children are present at the time), and it is noted that such attendance in not "contact time" nor a breach of these parenting orders.

(10) By consent, both parents shall:

a) provide to the other parent as they are received copies of school reports and school newsletters;

b) advise the other parent of parent/teacher meetings and school functions such as open days and awards functions;

c) consult with the other parent in relation to the selection of schooling of the children;

d) consult with the other parent in relation to the religious education of the children;

e) advise of the residential or contact address and phone number(s) of the children and of any changes to that address;

f) advise the other parent of any emergency and urgent message contact number to contact and of any changes to that number;

g) when either parent wishes to take the child away on holidays that parent give to the other notice of the intended holiday specifying the intended destination, travel dates and contact numbers.

(11) Within 3 months the wife shall cause the parties' joint debt secured on the property at Chester Hill ("the former matrimonial home") to be discharged and shall pay to the husband the sum of $139,905.

(12) On the wife complying with order (11), the husband shall vacate the former matrimonial home and thereafter shall have no interest in the former matrimonial home.

(13) If the wife does not comply with order (11), then within a further 3 months, the husband shall cause the parties' joint debt secured on the former matrimonial home to be discharged and shall pay to the wife the sum of $187,820.

(14) On the husband complying with order (13), the wife shall do all things and sign all documents necessary to transfer her interest in the former matrimonial home to the husband and shall vacate the former matrimonial home.

(15) If the husband does not comply with order (13), both parties shall forthwith do all things and sign all documents necessary to cause the former matrimonial home to be sold and the proceeds of sale, after payment of the parties' joint debt secured on the home and agents commission, legal fees and reasonable costs of sale, to be divided as to 57.3% to the wife and 42.7% to the husband.

(16) Otherwise, each party is entitled to the exclusion of the other to any cash, personal property and superannuation interests in his or her respective possession or control.

(17) Pursuant to s.106A, if either party fails or refuses to sign a document required to be signed by the party by these orders, a Registrar of this court may sign the document on behalf of the party.
Attachment

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Joint LEGAL Custody STILL

So this is "equal shared parenting responsibility" in Australia in 2006!

This judgment demonstrates the impotence and uselessness of a word like "responsibility" in relationship to (non-presumptive) equal shared parenting.
The ORDERS said
(1) RAE (the husband) and KML (the wife) shall have equal shared parental responsibility for RH-OE born 11 July 1992 and JLE born 26 August 1993 (the children).
The rest of these orders read little differently to outcomes for fathers before the 'change' of legislation on 1 July 2006 for "equal shared parenting responsibility": every second weekend, an overnight stay one week, half school holidays, birthdays, Father's Day and other non-custodial issues.

I realise it's not a grim as it looks, but this judgment is not encouraging that any change has occurred.  Fortunately, some judges and magistrates are working with, rather than against, the legislation.

It is disappointing that (in)Justice David Halligan has chosen to apply an American sleight of hand and effectively only granted the father what our American cousins call 'joint legal custody' (the pretend "joint custody") rather than the more genuine 'joint physical custody' (equal or substantive shared custody and residence).

Australians aren't meant to introduce overseas material into Australian family courts but Australian family court judges and magistrates can hand down American case judgments!
The ORDERS said
(2) The children shall live with the wife. This order shall take effect on the parties ceasing to live at the same address.

(3) The children shall spend time with the husband:

a) during school terms, from after school Friday to before school Monday each fortnight commencing the first Friday after the parties cease living at the same address, and recommencing on the first Friday of each school term thereafter;

b) during school terms, from after school Wednesday to before school Thursday each week, commencing on the first Wednesday after the parties cease living at the same address;

c) commencing in the first school holidays after the parties cease living at the same address, for half of all school holidays as agreed between the parties or failing agreement, for the second half of school holidays commencing in 2006 and each alternate year thereafter and for the first half of school holidays commencing in 2007 and each alternate year thereafter.

(4) Commencing when the parties cease living at the same address, despite order (3), the children shall spend time with:

a) the husband on Father's Day from 9am to 6pm;

b) the wife on Mother's Day from 9am to 6pm;

c) the husband on the husband's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be spending time with the husband under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be spending time with the husband under these orders;

d) the wife on the wife's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be living with the wife under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be living with the wife under these orders;

e) with the husband for 3 hours as agreed on each of the children's birthdays if not otherwise spending time with the children under these orders; and

f) with the wife for 3 hours as agreed on each of the children's birthdays if the children are not otherwise living with her under these orders.

(5) By consent, unless the husband's time with the children under these orders starts or ends before or after school, the husband shall collect the children from the wife's residence at the commencement of his time with the children, and the wife shall collect the children from the husband's residence at the conclusion of his time with the children.

(6) Where the children's time with the husband under these orders starts or ends before or after school, the husband shall collect the children from or return the children to their respective schools.
    
(7) By consent, the husband and the wife each shall not denigrate the other or the partner of the other in the presence or hearing of the children.

(8) By consent, the parties may provide a copy of these orders to the children's schools.
    
(9) By consent, each party shall be at liberty to attend the children's school (regardless of whether the children are present at the time), and it is noted that such attendance in not "contact time" nor a breach of these parenting orders.

(10) By consent, both parents shall:

a) provide to the other parent as they are received copies of school reports and school newsletters;

b) advise the other parent of parent/teacher meetings and school functions such as open days and awards functions;

c) consult with the other parent in relation to the selection of schooling of the children;

d) consult with the other parent in relation to the religious education of the children;

e) advise of the residential or contact address and phone number(s) of the children and of any changes to that address;

f) advise the other parent of any emergency and urgent message contact number to contact and of any changes to that number;

g) when either parent wishes to take the child away on holidays that parent give to the other notice of the intended holiday specifying the intended destination, travel dates and contact numbers.
1 guest and 0 members have just viewed this.

Recent Tweets