Alton and Alton - [2013] FCCA 1744

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALTON & ALTON

[2013] FCCA 1744

Catchwords:
FAMILY LAW – Children – Parenting Orders – interim orders – parental responsibility – equal shared parental responsibility – best interests of the child – one child aged six 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 interests – whether substantial and significant time is reasonably practicable – interim orders made after Family Report made available.

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

Goode & Goode [2006] FamCA 1346; (2006) 26 Fam LR 422; FLC 93-286
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

MS ALTON

Respondent:

MR ALTON

File Number:

SYC 85 of 2013

Judgment of:

Judge Scarlett

Hearing date:

21 October 2013

Date of Last Submission:

21 October 2013

Delivered at:

Sydney

Delivered on:

5 November 2013

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Christopher Mackay Lawyer

ORDERS

The Orders made by consent on 4 April 2013 are discharged.

UNTIL FURTHER ORDER

The Mother and Father are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2007.
The child X is to live with the Mother.
Between Wednesday 11 December 2013 and the first day that the child X is required to attend school at the commencement of Term 4 in 2014 the child will spend time with the Father as follows:
(a)During the school term:
(i)In the first week of each fortnight from immediately after school on Friday until the commencement of school on the following Monday morning; and
(ii)In the second week of each fortnight from immediately after school on Thursday until the commencement of school on Friday;
(iii)On the child’s birthday from immediately after school until 6:30 pm;
(iv)On the Father’s birthday from immediately after school until 6:30 pm; and
(v)At such other times as the parties may agree.
(vi)In the event that Mother’s Day falls on a weekend when X would normally be spending time with the Father in accordance with these Orders, the Father’s time with the child is to cease at 5:00 pm on the Saturday immediately before Mother’s Day and he is to make the child available for collection by the Mother;
(vii)In the event that Father’s Day falls on a weekend when X would normally be in the care of the Mother in accordance with these Orders, then the Mother is to make the child available for collection by the Father at 5:00 pm on the Saturday immediately before Father’s Day and the child is to spend time with the Father until the commencement of school on the Monday morning immediately after Father’s Day.
(b)During the Christmas/January school holidays as follows:
(i)From 9:00 am on Wednesday 18 December until 1:00 pm on Christmas Day;
(ii)From 9:00 am on New Year’s…

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 [2013] FCCA 1744
Case: [2013] FCCA 1744
Decision Date: 5 November 2013

CaseChat Overview and Summary

This matter concerned the parenting arrangements for the child X, born in 2007, between the Mother and the Father. The court was required to determine the specific orders regarding parental responsibility, the child's living arrangements, and the time the child would spend with each parent, including during school holidays and special occasions.

The court was tasked with establishing a comprehensive parenting plan that addressed the day-to-day care of the child, including detailed provisions for the child's time with each parent, both during school terms and holidays. Further issues included arrangements for international travel, communication between the child and each parent, and injunctions to prevent denigration of a parent in the child's presence and discussion of proceedings with the child. The court also needed to make orders concerning the notification of illness or injury and the involvement of each parent in the child's schooling.

The court made orders by consent, discharging previous arrangements. It ordered equal shared parental responsibility for the child, with the child to live with the Mother. Detailed provisions were set out for the child's time with the Father, commencing from December 2013 and extending beyond the commencement of the child's attendance at school in Term 4, 2014. These provisions included specific arrangements for school terms, Christmas and January holidays, and other school breaks, with provisions for changeovers and communication. The court also permitted the Mother to take the child on a holiday to a specified country and set conditions for future international travel by either parent, including notification periods and passport arrangements. Injunctions were imposed restraining both parents from denigrating each other in the child's presence or discussing the proceedings with the child. Further orders mandated notification of illness or injury, allowed attendance at school functions, and ensured each parent's contact details were on file at the child's school.

Orders

Orders of the court

The Orders made by consent on 4 April 2013 are discharged.

UNTIL FURTHER ORDER

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

The child X is to live with the Mother.

Between Wednesday 11 December 2013 and the first day that the child X is required to attend school at the commencement of Term 4 in 2014 the child will spend time with the Father as follows:

(a) During the school term:

(i) In the first week of each fortnight from immediately after school on Friday until the commencement of school on the following Monday morning; and

(ii) In the second week of each fortnight from immediately after school on Thursday until the commencement of school on Friday;

(iii) On the child’s birthday from immediately after school until 6:30 pm;

(iv) On the Father’s birthday from immediately after school until 6:30 pm; and

(v) At such other times as the parties may agree.

(vi) In the event that Mother’s Day falls on a weekend when X would normally be spending time with the Father in accordance with these Orders, the Father’s time with the child is to cease at 5:00 pm on the Saturday immediately before Mother’s Day and he is to make the child available for collection by the Mother;

(vii) In the event that Father’s Day falls on a weekend when X would normally be in the care of the Mother in accordance with these Orders, then the Mother is to make the child available for collection by the Father at 5:00 pm on the Saturday immediately before Father’s Day and the child is to spend time with the Father until the commencement of school on the Monday morning immediately after Father’s Day.

(b) During the Christmas/January school holidays as follows:

(i) From 9:00 am on Wednesday 18 December until 1:00 pm on Christmas Day;

(ii) From 9:00 am on New Year’s Day until 9:00 am on Wednesday 8 January 2014;

(iii) From 9:00 am on Wednesday 15 January until 9:00 am on 22 January 2014;

(iv) From 9:00 am on 29 January until 8:30 am on Monday 3 February 2014;

(c) During the school holidays at the end of Term 1 from 22 April 2014 until the commencement of school on Tuesday 29 April 2014;

(d) For the school holidays at the end of Term 2 in 2014 from 9:00 am on Saturday 28 June until 5:00 pm on Saturday 5 July and from 9:00 am on Saturday 12 July until 5:00 pm on Saturday 19 July 2014; and

(e) For the school holidays at the end of Term 3 in 2014 from 9:00 am on Saturday 27 September until 5:00 pm on Saturday 4 October 2014; and

(f) At such other times as the parties may agree.

From and after the first day that the child X is required to attend school at the commencement of Term 4 in 2014 the child will spend time with the Father as follows:

(a) During the school term:

(i) In the first week of each fortnight from immediately after school on Friday until the commencement of school on the following Tuesday irrespective of whether the Monday of that week is a public holiday or not; and

(ii) In the second week of each fortnight from immediately after school on Thursday until the commencement of school on Friday;

(iii) On the child’s birthday from immediately after school until 6:30 pm; and

(iv) On the Father’s birthday from immediately after school until 6:30 pm; and

(v) At such other times as the parties may agree.

(vi) In the even that Mother’s Day falls on a weekend when X would normally be spending time with the Father in accordance with these orders, the Father’s time with the child is to cease at 5:00 pm on the Saturday immediately before Mother’s Day and he is to make the child available for collection by the Mother; and

(vii) In the event that Father’s Day falls on a weekend when X would normally be in the care of the Mother according to these Orders, then the Mother is to make the child available for collection by the Father at 5:00 pm on the Saturday immediately before Father’s Day and the child is to spend time with the Father until the commencement of school on the Monday morning immediately after Father’s Day.

(b) During the Christmas/January school holidays:

(i) From 1:00 pm on Christmas Day until 6:30 pm on Boxing Day in 2014 and all even-numbered years thereafter;

(ii) From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day in 2015 and all odd-numbered years thereafter;

(iii) From 9:00 am on 5 January until 6:30 pm on 26 January in each year;

(c) During the school holidays at the end of Term 1, Term 2 and Term 3 in each year, for half of each school holiday period, being the first half in 2015 and all odd-numbered years thereafter and the second half in 2016 and all even-numbered years thereafter;

(d) At such other times as the parties may agree.

For the purpose of giving effect to these Orders, changeover between the parties will take place at the child’s school on all occasions when the child’s time with the Father commences immediately after school and concludes at the commencement of school and all other times the parent receiving the child into his or her care will be responsible for collecting the child from the residence of the other parent.

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

Neither parent is to interrupt or restrict telephone calls, emails or other forms of electronic communication between X and the other parent.

Each parent must allow the child to speak to the other parent by telephone in privacy without interruption.

10.

The Mother is permitted to remove the child X born (omitted) 2007 from Australia for the purposes of a holiday in (country omitted) between 12 April and 22 April 2014.

11.

Whilst the child X is out of Australia in accordance with the above Order the Mother is to arrange for her to telephone the father on no fewer than two (2) occasions.

12.

Either parent may arrange to take the child X born (omitted) 2007 out of Australia for the purposes of a holiday on the following conditions:

(a) The parent proposing to travel with the child is to provide notification to the other parent two (2) months prior to the date of the proposed departure including:

(i) The proposed destination or destinations;

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

(iii) Contact details at all places where the child will be staying including telephone number, email address and postal address;

(b) The Mother is to retain the child’s passport which she must provide to the Father no later than seven (7) days prior to the proposed date of departure;

(c) The Father must return the child’s passport to the Mother no later than seven (7) days after he returns to Australia with the child;

(d) Both parties must do all acts and things and sign all necessary to allow the issue of a new passport for the child; and

(e) Neither parent is to remove the child from Australia for the purpose of a holiday or retain her out of Australia on a day when the child would normally be required to attend school.

13.

The parties are restrained by injunction from:

(a) Denigrating or criticising the other party in the presence or hearing of the child X or permitting any third party to do so; and

(b) Discussing these proceedings with the child.

14.

The parties are to advise each other as soon as reasonably practicable of any illness or injury or any other medical emergency sustained by the child whilst she is in their respective care under these Orders.

15.

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

16.

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

17.

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.

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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