Alton and Alton - [2014] FCCA 2252

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALTON & ALTON

[2014] FCCA 2252

Catchwords:
FAMILY LAW – Children – Parenting Orders – parental responsibility – equal shared parental responsibility – best interests of the child – one child aged seven years – whether equal time with each parent is in child’s best interests – whether equal time with each parent is reasonably practicable – substantial and significant time – whether substantial and significant time is in child’s best interest – whether substantial and significant time is reasonably practicable – events that have occurred after interim orders made on 5 November 2013 – child’s school – whether injunctive order should be made restraining change of school – overseas travel – conditions attached to overseas travel – passport – arrangements about child’s passport – whether proposed orders are “micro-managing parenting” – courts should take a minimalist approach in making parenting orders – courts should only intervene when the welfare of the child will be advanced by making an order.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y

Cases cited:
Alton & Alton [2013] FCCA 1744
Chan & Phu [2013] FCCA 556;
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713
In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92-492
Nash & Reis [2013] FMCAfam 11
Scott & Kent [2013] FCCA 127
VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLKC 93-099

Applicant:

MS ALTON

Respondent:

MR ALTON

File Number:

SYC 85 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

17-19, 26 September 2014

Date of Last Submission:

26 September 2014

Delivered at:

Sydney

Delivered on:

3 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Christopher Mackay

The Respondent:

In person

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2007.
The Father is to have responsibility for making decisions concerning the day to day issues of the child X when she spends time with him and the Mother is to have responsibility for making decisions concerning the day to day issues of the child when she lives with her.
The child X is to live with Mother.
The child X is to spend time with the Father:
(a)During school term time each alternate week from immediately after school on Thursday until the commencement of school on the following Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday AND FURTHER PROVIDED THAT the child’s time with the Father is to occur when the child A is ordinarily with his mother Ms S so far as reasonably possible;
(b)During the Christmas/January school holidays commencing in December 2014:
(i)with the Mother from the last day of the fourth school term until 12:00 noon 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.

Continue reading Alton and Alton

Details

AGLC: Alton and Alton [2014] FCCA 2252
Case: [2014] FCCA 2252
Decision Date: 3 October 2014

CaseChat Overview and Summary

In the matter of *Alton and Alton*, heard by Judge Scarlett, the dispute concerned parenting orders for the child X. The applicant mother and respondent father sought to establish arrangements for their child's care, time spent with each parent, and decision-making responsibilities.

The court was required to determine the extent of equal shared parental responsibility, the specific living arrangements for the child, and the detailed schedule of time the child would spend with each parent during school terms, holidays, and on significant dates. Further issues included provisions for communication between the child and parents, international travel, and the exchange of the child's passport. The court also needed to address injunctions regarding parental conduct and the exchange of information concerning the child's education and medical care.

The court discharged all earlier parenting orders and established new arrangements. It ordered equal shared parental responsibility, with each parent having responsibility for day-to-day issues when the child was in their care. The child was ordered to live with the mother, with a detailed schedule outlining the child's time with the father during school terms, Christmas/January holidays, and other school breaks, including provisions for Easter and parental birthdays. The orders also included specific arrangements for changeovers, telephone contact, and international travel, along with injunctions restraining criticism of the other parent and mandating the sharing of information regarding the child's schooling and health.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2007.

The Father is to have responsibility for making decisions concerning the day to day issues of the child X when she spends time with him and the Mother is to have responsibility for making decisions concerning the day to day issues of the child when she lives with her.

The child X is to live with Mother.

The child X is to spend time with the Father:

(a) During school term time each alternate week from immediately after school on Thursday until the commencement of school on the following Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday AND FURTHER PROVIDED THAT the child’s time with the Father is to occur when the child A is ordinarily with his mother Ms S so far as reasonably possible;

(b) During the Christmas/January school holidays commencing in December 2014:

(i) with the Mother from the last day of the fourth school term until 12:00 noon on Christmas Day;

(ii) with the Father from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day;

(iii) with the Mother from 12:00 noon on Boxing Day until 9:00am on 6 January 2015;

(iv) with the Father from 9:00am on 6 January 2015 until 9:00am on 22 January 2015; and

(v) with the Mother from 9:00am on 22 January 2015 until the commencement of the first school term in 2015.

(i) with the Father from the last day of the fourth school term until 1:00pm on Christmas Day;

(ii) with the Mother from 1:00 pm on Christmas Day until 9:00am on 6 January 2016;

(iii) with the Father from 9:00am on 6 January 2016 until 9:00am on 15 January 2016; and

(iv) with the Mother from 9:00am on 15 January 2016 until the commencement of the first school term in 2016; and

(d) During the Christmas/January school holidays commencing in December 2016:

(i) with the Mother from the end of the last school term until 1:00pm on Christmas Day;

(ii) with the Father from 1:00pm on Christmas Day until 9:00am on 6 January 2017;

(iii) with the Mother from 9:00am on 6 January 2017 until 9:00am on 15 January 2017; and

(iv) with the Father from 9:00am on 15 January 2017 until the commencement of the first school term in 2017.

(e) in subsequent years, rotating according to the pattern set out in sub-paragraphs (c) and (d) above.

During the school holidays at the conclusion of Terms 1, 2 and 3 in each year, the child X is to spend time with her parents as follows:

(a) in 2015 and all subsequent odd numbered years:

(i) with her mother for the first half of each school holiday period; and

(ii) with her father for the second half of each school holiday period; and

(b) in 2016 and all subsequent even numbered years:

(i) with her father for the first half of each school holiday period; and

(ii) with her mother for the second half of each school holiday period.

(c) Unless otherwise agreed between the parties, the changeover day in the school holiday period is to be 9:00am on the day falling most closely to the middle day of the school holiday period.

If Easter should fall on a weekend outside of the school holidays at the end of the first school term then the child X is to spend time with the parties as follows:

(a) with her mother in all even numbered years from 9:00am on Good Friday until 5:00pm on Easter Monday; and

(b) with her father in all odd numbered years from 9:00am on Good Friday until 5:00pm on Easter Monday.

In the event that (religion omitted) Easter falls on a different date to Easter and the child X is due to spend the Sunday of (religion omitted) Easter with her father, then the father is to make the child available to attend the Mother’s family (religion omitted) Easter celebration with the Mother from 12:00 noon on the Sunday until the following Monday morning at 9:00am and in the event that the Monday is a day on which the child would normally attend school then the Mother is to deliver the child to school UNLESS the Sunday of (religion omitted) Easter should fall at a time during the school holidays when the child would be spending time with the Father according to these Orders.

Notwithstanding the provisions of any other Order the child X is to spend time with her mother from 5:00pm on the Saturday immediately before Mother’s Day until 9:00am on the following Monday.

10.

Notwithstanding the provisions of any other Order the child X is to spend time with her father from 5:00pm on the Saturday immediately before Father’s Day until 9:00am on the following Monday.

11.

Notwithstanding the provisions of any other Order the child X is to spend time on her birthday being (omitted) in each year with the parent with whom she is not otherwise spending time as follows:

(a) from immediately after school until 6:30pm if the birthday falls on a school day; and

(b) from 9:00am until 12:00noon if the birthday falls on a day when she is not required to attend school.

12.

The child X is to spend time with her father on his birthday being (omitted) if the birthday should fall on a day when the child would not otherwise be spending time with her father as follows:

(a) from immediately after school until 6:30pm if the birthday falls on a school day; and

(b) from 9:00am until 12:00 noon if the birthday falls on a day when she is not required to attend school.

13.

The child X is to spend time with her mother on the Mother’s birthday being (omitted) if the birthday should fall on a day when the child would not otherwise be spending time with her mother as follows:

(a) from immediately after school until 6:30pm if the birthday falls on a school day; and

(b) from 9:00am until 12:00 noon if the birthday falls on a day when the child is not required to attend school.

14.

For the purpose of changeover between the parties the father or his nominee is to collect the child from school or the Mother’s residence as the case may be at the commencement of the child’s time with the Father and the Mother or her nominee is to collect the child from school or the Father’s residence as the case may be at the commencement of the child’s time with the Mother.

15.

Each party must do all things necessary to facilitate telephone contact between the child X and the other parent at all reasonable times when the child wishes to speak to the other parent on the telephone.

16.

The parties are restrained from interrupting or restricting telephone calls, emails and other forms of electronic communication between the child and the other parent.

17.

Each party must allow the child to speak to the other party by telephone in privacy without interruption so far as is reasonably possible.

18.

The Applicant Mother and the Respondent Father are both permitted to take the child X born (omitted) 2007 out of Australia to a place outside Australia for the purposes of a holiday during the time when the child would ordinarily be in the care of that parent in accordance with these Orders subject to the following conditions:

(a) the party proposing to travel out of Australia with the child must notify the other party one month prior to the proposed date of departure from Australia of the following matters:

(i) the proposed destination or destinations;

(ii) a written itinerary including dates of travel, mode of travel, flight numbers and times;

(iii) contact details of all places where the child will be staying including telephone numbers, email and postal addresses; and

(b) the party proposing to travel with the child must confirm to the other party the details of the arrangements referred to in the immediately preceding Order one week prior to the date of proposed travel.

19.

The Respondent Father is permitted to take the child X out of Australia for the purposes of a holiday in (country omitted) between 7 January and 21 January 2015 PROVIDED THAT he complies with the conditions contained in Order (18) above.

20.

The Applicant Mother is to retain the child’s passport in her possession but must provide the passport to the Respondent Father no later than one week prior to the confirmed date of the child’s departure from Australia with the father PROVIDED THAT the Mother is to make the child’s passport available to the Father at an earlier time for the purpose of obtaining any necessary visa for the child if the Father should so request.

21.

The Father is to return the child’s passport to the Mother within seven (7) days of returning to Australia with the child.

22.

The parties must each do all acts and things and sign all necessary documents to allow the issue of a new or replacement passport for the child.

23.

The parties are restrained by injunction from criticising or denigrating the other party or members of the other party’s immediate family in the presence or hearing of the child or from permitting any third person to do so.

24.

Each party must advise the other party and keep the other party informed of their current residential address and advise the other party of any proposed change to their residential address at least one month prior to that change.

25.

Each party must advise the other as soon as reasonably possible of:

(a) any medical emergency involving the child X;

(b) any medical or dental appointments for the child; and

26.

Each party will be at liberty to attend any school function, parent/teacher interview or sporting event involving the child to which parents are normally invited to attend.

27.

Each party is at liberty to receive all copies of any school reports relating to the child and school bulletins, newsletters, information about school photographs or other material normally sent to parents of children attending the child’s school.

28.

Each party must ensure that his or her name and contact details are placed on file at the child’s school for use in case of emergency.

29.

Unless otherwise agreed between the parties, they and each of them are to do all acts and things necessary to ensure that the child X continues to attend the (omitted) School until the completion of Year 4.

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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