Alden and Dodds - [2015] FCCA 185

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDEN & DODDS

[2015] FCCA 185

Catchwords:
FAMILY LAW – Parenting – father’s time with child – mother’s anxiety – progression of time with the father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC & 65DAA

Mallahan v Mallahan [2010] FamCA 631
McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2007) 37 Fam LR 518
Starr v Duggan [2009] FamCAFC 115

Applicant:

MR ALDEN

Respondent:

MS DODDS

File Number:

ADC 4359 of 2011

Judgment of:

Judge Cole

Hearing date:

18 November 2014

Date of Last Submission:

18 November 2014

Delivered at:

Adelaide

Delivered on:

30 January 2015

REPRESENTATION

Counsel for the Applicant:

Vanessa Lindsay

Solicitors for the Applicant:

Mark Forth & Associates

Counsel for the Respondent:

Meredith Dickson

Solicitors for the Respondent:

All Family Law

Counsel for the Independent Children's Lawyer:

Vanessa Lee

Solicitors for the Independent Children's Lawyer:

Legal Services Commission Whyalla

ORDERS

That all previous orders be discharged.
That the parties have equal shared parental responsibility for the child [X] born on [omitted] 2009.
That the said child live with the mother.
That the said child spend time with the father as follows:
(a)from 10.00am to 4.00pm on Saturday and Sunday each alternate week, up to and including 1 March 2015;
(b)upon the said child commencing primary school, in each week from the conclusion of school Wednesday (or 3.30pm if a non-school day) until 7.00pm, provided the father is living in [P];
(c)from 10.00am on Saturday until 11.00am on Sunday each alternate weekend commencing on 9 March 2015 up to and including 9 April 2015;
(d)from the conclusion of school on Friday (or 3.30pm if a non-school day) until 4.00pm on Sunday each alternate weekend commencing on 10 April 2015 up to and including 2 July 2015;
(e)from the conclusion of school (or 3.30pm if a non-school day) on Friday until the commencement of school (or 9.00am) on Monday each alternate weekend commencing on 4 July 2015;
(f)for the third term school holidays in 2015, for the first six days of the holiday period from the conclusion of school until 5.00pm on the following Thursday and thereafter for the first seven days of each term holiday commencing first term 2016;
(g)for the Christmas school holidays on a week-about basis as follows:
(i) in 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 5.00pm on the Saturday falling one week later; and then each alternate Saturday from 5.00pm until 5.00pm on the following Saturday; and
(ii) in 2016 and each alternate year thereafter, from 5.00pm on the second Saturday of the holiday period until 5.00pm on the following Saturday, and each alternate week thereafter.
(h)as and from the third term school holidays in 2015, the said child’s term time with the father pursuant to the above orders be suspended during any school holiday period and recommence on the first Wednesday of the school term;
(i)on special occasions with the father as…

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 Alden and Dodds

Details

AGLC: Alden and Dodds [2015] FCCA 185
Case: [2015] FCCA 185
Decision Date: 30 January 2015

CaseChat Overview and Summary

This matter concerned parenting orders for a child, [X], born in 2009, between the parties, Alden and Dodds. The proceedings were before Judge Cole.

The court was required to determine the arrangements for the child's living arrangements, time spent with each parent, communication between the parents and the child, and specific orders regarding parental responsibility, handovers, and the exchange of information. The court also considered injunctions to restrain certain behaviours between the parties and orders relating to the child's schooling and medical care.

Judge Cole ordered that all previous orders be discharged. The court made orders for equal shared parental responsibility for the child, with the child to live with the mother. The father was granted specific periods of time with the child, which were detailed and phased in over time, including provisions for weekends, school holidays, and special occasions such as birthdays and Christmas. The orders also stipulated communication methods between the father and the child, and the location for handovers. Furthermore, the court issued injunctions restraining both parties from denigrating each other, discussing proceedings with the child, physically disciplining the child, engaging in abusive communication, attending at the other party's residence or place of work, posting about proceedings on social media, or changing the child's principal place of residence without consent or court order. The father was also restrained from engaging in employment while the child was in his care. The court also made provisions for both parents to obtain information from the child's school and medical providers, and for the mother to attend therapy. The appointment of the Independent Children's Lawyer was discharged, and the proceedings were otherwise dismissed.

Orders

Orders of the court

That all previous orders be discharged.

That the parties have equal shared parental responsibility for the child [X] born on [omitted] 2009.

That the said child live with the mother.

That the said child spend time with the father as follows:

(a) from 10.00am to 4.00pm on Saturday and Sunday each alternate week, up to and including 1 March 2015;

(b) upon the said child commencing primary school, in each week from the conclusion of school Wednesday (or 3.30pm if a non-school day) until 7.00pm, provided the father is living in [P];

(c) from 10.00am on Saturday until 11.00am on Sunday each alternate weekend commencing on 9 March 2015 up to and including 9 April 2015;

(d) from the conclusion of school on Friday (or 3.30pm if a non-school day) until 4.00pm on Sunday each alternate weekend commencing on 10 April 2015 up to and including 2 July 2015;

(e) from the conclusion of school (or 3.30pm if a non-school day) on Friday until the commencement of school (or 9.00am) on Monday each alternate weekend commencing on 4 July 2015;

(f) for the third term school holidays in 2015, for the first six days of the holiday period from the conclusion of school until 5.00pm on the following Thursday and thereafter for the first seven days of each term holiday commencing first term 2016;

(g) for the Christmas school holidays on a week-about basis as follows:

(i) in 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 5.00pm on the Saturday falling one week later; and then each alternate Saturday from 5.00pm until 5.00pm on the following Saturday; and

(ii) in 2016 and each alternate year thereafter, from 5.00pm on the second Saturday of the holiday period until 5.00pm on the following Saturday, and each alternate week thereafter.

(h) as and from the third term school holidays in 2015, the said child’s term time with the father pursuant to the above orders be suspended during any school holiday period and recommence on the first Wednesday of the school term;

(i) on special occasions with the father as follows (NOTING orders have been made in respect of [X]’s birthday, Christmas and the twins’ birthday for 2014/15):

(i) For [X]’s birthday:

a) from 4.00pm on [date omitted] 2015 until 4.00pm on [next day omitted] 2015 and during the same times in each alternate year thereafter PROVIDED however that the mother shall have [X] in her care from 4.00pm on [date omitted] 2015 to 4.00pm on [next day omitted] 2015 and during the same times in each alternate year thereafter; and

b) from 4.00pm on [date omitted] 2016 until 4.00pm on [next day omitted] 2016 and during the same times in each alternate year thereafter PROVIDED however that the mother have [X] in her care from 4.00pm on [date omitted] 2016 to 4.00pm on [next day omitted] 2016 and during the same times in each alternate year thereafter.

(ii) For Christmas:

a) from 4.00pm on 24 December 2015 until 4.00pm on 25 December 2015 and during the same times in each alternate year thereafter with the mother to have [X] from 4.00pm on 25 December 2015 until 4.00pm on 26 December 2015 and each alternate year thereafter; and

b) from 4.00pm on 25 December 2016 to 4.00pm on 26 December 2016 and during the same times in each alternate year thereafter with the mother to have [X] from 4.00pm on 24 December 2016 until 4.00pm on 25 December 2016 and each alternate year thereafter;

(iii) for Father’s Day and Mother’s Day from 9.00am to 5.00pm on Father’s Day each year, with the mother to have [X] from 9.00am until 5.00pm on Mother’s Day each year;

(iv) for [X]’s twin sisters’ birthday from 9.00am until 4.00pm on [date omitted] each year; and

(v) from 9.00am to 6.00pm on the father’s wedding day (expected to be [date omitted] 2015).

(j) the father communicate with the said child by telephone, Face Time or Skype as follows:

(i) between 4.30pm and 5.00pm on each Tuesday and Thursday with the father to originate the call and the mother to ensure she facilitates the child engaging in same whether by Skype, Face Time or telephone;

(ii) between 4.30pm and 5.00pm on 10 March for the father’s birthday each year, in the event that the child is not in his care; and

(iii) between 10.00am and 10.30am on Easter Sunday each year; and

(k) at such other times as are agreed between the parties.

That handovers which do not occur at [X]’s school shall occur inside the [P] Police Station between the parties and/or their nominees.

That the parties forthwith exchange and keep each other advised within 24 hours of any change to their address, landline or mobile telephone numbers and email address or Face Time or Skype number on which [X] may be contacted.

That the child [X] be at liberty to telephone her mother at any reasonable time while she is in the care of the father and the father shall take all steps necessary to facilitate this communication.

That in the event the child [X] becomes inconsolably distressed and the father is unable to settle her, then the father will contact the mother and arrange the return of [X] to the mother.

That the parties be restrained and an injunction be granted restraining each of them from the following:

(a) denigrating the other party, the other party’s family or partners in the presence of the child or allowing any other person to do so;

(b) discussing these proceedings with or in the presence of the child or allowing any other person to do so;

(d) physically disciplining the child or allowing any other person to do so;

(e) communicating with the other party in an abusive or derogatory manner;

(f) attending at the other party’s residence or place of work;

(g) posting on any Internet social network facility any reference to these court proceedings; and

(h) changing the child’s principal place of residence from [P] without the written consent of the other party or an Order of this Court.

10.

That the father be restrained from engaging in employment while the child is in his care.

11.

That both parties be at liberty to obtain all information from the child’s school to which parents are usually entitled at their own expense.

12.

That both parties be at liberty to attend at the child’s school for parent teacher interviews (even separately), school concerts, sports day and school awards ceremonies.

13.

That both parties be at liberty to obtain any medical information about the child at their own expense and that the mother keep the father advised of the names and contact details of any treating medical practitioners or allied health professionals and any change thereto within seven (7) days via email.

14.

That the parties as soon as reasonably practicable notify the other of them in the event that [X] requires urgent and/or serious medical treatment or hospital admission and each party is at liberty and authorised to liaise directly with [X]’s healthcare and medical providers.

15.

That the mother do all such acts and sign any such documents to attend for therapy with Ms T as directed by Ms T or such other therapist as recommended by Ms T.

16.

That the mother provide copies of the Family Assessment Reports of Ms C and the reports of Ms H to any therapist engaged pursuant to paragraph 14 hereof.

17.

That the appointment of the Independent Children’s Lawyer be discharged.

18.

That the proceedings be otherwise 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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