Addington and Koldsjor - [2008] FamCA 143

FAMILY COURT OF AUSTRALIA

ADDINGTON & KOLDSJOR

[2008] FamCA 143

FAMILY LAW – CHILDREN - With whom a child lives - Cultural issues

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-277
B and B; Family Law Reform Act 1995 (1997) FLC 92-775
Mazorski v Albright (2007) 37 Fam LR 518

APPLICANT:

Mr Addington

RESPONDENT:

Ms Koldsjor

FILE NUMBER:

SYF

4035

2006

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

23 February 2007, 23 May 2007, and 3 August 2007

REPRESENTATION

APPLICANT APPEARED IN PERSON

SOLICITOR FOR THE RESPONDENT:

Ms Musgrave, Musgrave Peach Family Lawyers

Orders

The parents have joint parental responsibility for the child of the relationship, …, born on … October 2003.
The Father have responsibility for the day-to-day care, welfare and development of the child when she lives with the Father.
The Mother have responsibility for the day-to-day care, welfare and development of the child when she lives with the Mother.
The child live with the Father as follows:-
4.1during the 2008 school year in each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday commencing on 14 April 2008;
4.2as from the commencement of the 2009 school year in each alternate week from 5:00 pm on Friday to before school on the following Tuesday morning;
4.3during the school terms in each other week from 5:00 pm on Tuesday before school on the following Wednesday morning;
4.4For one half of the April school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;
4.5For the whole of the September school holidays;
4.6For one half of the December/January school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;
4.7In the event that the child is not living with the Father pursuant to these orders on the Father’s birthday then from 5:00 pm on the day preceding the Father’s birthday to 9:00 am or before school on the day following his birthday;
4.8In the event that the child is not living with the Father pursuant to these orders on Father’s Day then on the weekend of Father’s Day from 5:00 pm on Saturday to 9:00 am or before school on the following Monday;
4.9In the event that the child is not living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the following day;
4.10In the event that the Easter period does not fall during the school holiday period between term one and term two then from 5:00 pm on the Thursday immediately preceding Easter until 5:00 pm on Easter Saturday in each even numbered year and from 5:00 pm on Easter Saturday until 5:00…

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 Addington and Koldsjor

Details

AGLC: Addington and Koldsjor [2008] FamCA 143
Case: [2008] FamCA 143
Decision Date: 7 March 2008

CaseChat Overview and Summary

This case concerned parenting orders made by O'Ryan J in the Federal Circuit Court of Australia. The dispute involved the father and mother of a child born in October 2003, regarding the arrangements for the child's care, welfare, and development. The court was required to determine the specific terms of joint parental responsibility, the day-to-day care arrangements when the child lived with each parent, and various other matters including holiday arrangements, travel, education, and communication between the parents.

The court's reasoning led to detailed orders concerning the child's living arrangements, alternating between the parents with specific timings for weekdays, weekends, and school holidays. These orders also addressed the child's surname, a proposed christening ceremony, international travel permissions, and the requirement for notification of any travel outside the Sydney metropolitan area. Furthermore, the court mandated the enrolment of the child at D School and established protocols for information sharing between the parents regarding the child's health, significant events, and educational matters. The orders also included provisions restraining derogatory comments about either parent in the child's presence and outlined the consequences of contravening the orders, referencing relevant sections of the *Family Law Act 1975* (Cth).

The court made specific orders regarding the child's living arrangements with each parent, including detailed schedules for school terms and holidays. The father and mother were granted joint parental responsibility, with each parent having responsibility for the child's day-to-day care when the child was with them. The orders also addressed the child's surname, permitting the mother to have the child christened in the Danish Church under specific conditions, and required both parties to take steps to remove the child from the Airport Watch List. The court permitted the child to travel to Europe with the mother annually and allowed for other overseas travel with the written consent of the other party, which was not to be unreasonably withheld. The father was also to have opportunities for overseas travel with the child. The application by the mother for payment of school fees was adjourned for a future hearing.

Orders

Orders of the court

The parents have joint parental responsibility for the child of the relationship, …, born on … October 2003.

The Father have responsibility for the day-to-day care, welfare and development of the child when she lives with the Father.

The Mother have responsibility for the day-to-day care, welfare and development of the child when she lives with the Mother.

The child live with the Father as follows:-

4.1 during the 2008 school year in each alternate week from 5:00 pm on Friday to 3:00 pm on the following Tuesday commencing on 14 April 2008;

4.2 as from the commencement of the 2009 school year in each alternate week from 5:00 pm on Friday to before school on the following Tuesday morning;

4.3 during the school terms in each other week from 5:00 pm on Tuesday before school on the following Wednesday morning;

4.4 For one half of the April school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;

4.5 For the whole of the September school holidays;

4.6 For one half of the December/January school holiday period by agreement, and failing agreement for the first half of such holidays in each even numbered year and the second half in each odd numbered year;

4.7 In the event that the child is not living with the Father pursuant to these orders on the Father’s birthday then from 5:00 pm on the day preceding the Father’s birthday to 9:00 am or before school on the day following his birthday;

4.8 In the event that the child is not living with the Father pursuant to these orders on Father’s Day then on the weekend of Father’s Day from 5:00 pm on Saturday to 9:00 am or before school on the following Monday;

4.9 In the event that the child is not living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the following day;

4.10 In the event that the Easter period does not fall during the school holiday period between term one and term two then from 5:00 pm on the Thursday immediately preceding Easter until 5:00 pm on Easter Saturday in each even numbered year and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday in each odd numbered year;

4.11 From 9:00 am on 25 December until 12 midday on 26 December in each year and the Mother deliver the child to the Father at the commencement of the period and the Father return the child to the Mother at the cessation of the period.

4.12 At such other times as may be agreed between the parties.

The child live with the Mother as follows:

5.1 Subject to order 4 hereof at all other times.

5.2 In the event that the child is otherewise living with the Father pursuant to these orders on the child’s birthday then from 5:00 pm on the day preceding the child’s birthday until 9:00 am or before school on the day of her birthday;

5.3 In the event that the child is otherwise living with the Father pursuant to these orders on the birthdays of the Mother and the child S (being the child’s sister) from 5:00 pm on the day preceeding each of the birthdays of the Mother and S until 9:00 am on the day following each of the birthdays;

5.4 In the event that the child is otherwise living with the Father pursuant to these orders on Mother’s Day then from 5:00 pm on Saturday until 9:00 am on the following Monday on the weekend of Mother’s Day;

5.5 From 9:00 am on 24 December until 9.00 am on 25 December in each year;

Subject to Order 4.11 hereof the Father collect the child at the commencement of the periods the child is to live with the Father and the Mother collect the child at the commencement of the periods the child is to live with the Mother.

The Father and the Mother each be entitled to daily reasonable telephone contact with the child when she is in the care of the other party.

The Father and the Mother each be restrained from causing the child to have or use any surname other than the surname Addington.

The Mother be permitted to have the child christened in the Danish Church on condition that:

9.1 the Father be at liberty to nominate a member of the clergy to co-officiate the ceremony;

9.2 the Father nominate one of the two godparents for the child;

9.3 the child be christened as … Addington.

10.

Both parties do all acts and things and execute all documents necessary to remove the name of the child from the Airport Watch List.

11.

The child be permitted to travel to Europe with the Mother each year during the July school holiday period, which holiday period shall be in accordance with the calendar for D School.

12.

Both parties be at liberty to otherwise travel overseas with the child provided they have the written consent of the other party, which consent shall not be withheld unreasonably.

13.

It be noted that it is intended that the Father will also have the opportunity to travel overseas for holidays periods with the child.

14.

In the event either party does not consent to the child travelling overseas with the other party then the party who does not provide consent shall be responsible for the care of the child during the other party’s absence.

15.

In the event that either the Father or the Mother wish to travel for more than three hours outside the Sydney metropolitan area with the child each of them shall provide to the other one weeks notice in writing of the itinerary including flight numbers and dates of departure and return, accommodation details and contact details for the entire absence of the child from the Sydney metropolitan area.

16.

Both parties do all acts and things and execute all documents necessary to complete the enrolment of the child at D School from 2009 until completion of her secondary school education.

17.

In the event that either parent is unable to have time with the child in accordance with these Orders then the parent shall provide to the other parent fourteen days notice in writing.

18.

The parties provide each other with information regarding:

18.1 Any medical emergency involving the child such as serious illness, accident or hospitalisation as soon as practicable.

18.2 The general health of the child such as medical appointments, progress test results and details of any treatment.

18.3 Occasions or events of special significance to the child or either party.

19.

Each parent do all things necessary to authorise:

19.1 the child’s school, pre-school or any child care facility to provide to the other party information or documents including photos, newsletters and notices upon request of the other party.

19.2 Medical practitioners or specialists to provide to the other party information or documents including medical reports and details of any treatment upon request of the other party.

20.

The Mother to notify the Father in writing of any change to her residential address and telephone number.

21.

The Father to notify the Mother in writing of any change to his residential address and telephone number.

22.

Each party be and is hereby restrained from saying anything to or in the presence or hearing of the child which is in any way derogatory of the other.

23.

Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

24.

The application by the Mother for payment of school fees be adjourned for hearing on a date to be arranged with the Listing Co-Ordinator.

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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