Ashford and Ashford - [2015] FCCA 2701

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHFORD & ASHFORD

[2015] FCCA 2701

Catchwords:
FAMILY LAW – Parenting – parental responsibility – whether children should remain living with father in remote rural location – whether children should return to live with mother in suburban Sydney – children’s views – poor communication – reasonable practicability.

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA.

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MS ASHFORD

Respondent:

MR ASHFORD

File Number:

SYC 2494 of 2014

Judgment of:

Judge Monahan

Hearing dates:

27 & 28 August 2015

Date of Last Submission:

28 August 2015

Delivered at:

Sydney

Delivered on:

11 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms Carr

Solicitors for the Applicant:

David H Cohen

Counsel for the Respondent:

Mr Wilson

Solicitors for the Respondent:

Friedlieb Byrne Solicitors

Counsel for the Independent Children's Lawyer:

Mr Ladopoulos

Solicitors for the Independent Children's Lawyer:

John Spence & Associates

THE COURT ORDERS THAT

Save for these final Orders, all previous parenting Orders be discharged on and from 21 December 2015.

Parental Responsibility

Subject to paragraph 3 herein, the parties MS ASHFORD (“the mother”) and MR ASHFORD (“the father”) have shared parental responsibility for X born (omitted) 2000 (“X”) and Y born (omitted) 2003 (“Y”) (or collectively, “the children”) in relation to major long term issues.
The mother have sole parental responsibility for the children in relation to long term issues involving education and health.
For the purposes of paragraph 3 herein and subject to any emergency decisions being required, the mother:
(a)notify the father of any proposed decision and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b)take into consideration any views expressed by the father about the proposed decision before making a final decision.
Each party have responsibility for decisions concerning the day to day care, welfare and development of the children whilst the children are in that party’s care.

Live With

The children live with the mother.

Spend Time With

The children spend time with the father as follows:
(a)during the New South Wales school holiday periods at the end of Terms 1 and 3, for eight (8) consecutive nights commencing on the first Saturday of the school holiday period;
(b)during the New South Wales school holiday periods at the end of Term 2, for twelve (12) consecutive nights commencing on the first Saturday of the school holiday period;
(c)during the New South Wales Christmas school holidays:
(i)for the school holiday period commencing at the end of Term 4 in 2015, for fourteen (14) consecutive nights commencing on 3 January; and thereafter
(ii)where the school holiday period commences in a year ending in an even number (eg. 2016), for twenty-one (21) consecutive nights commencing on the second day after the last day…

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 Ashford and Ashford

Details

AGLC: Ashford and Ashford [2015] FCCA 2701
Case: [2015] FCCA 2701
Decision Date: 11 December 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Monahan in the Federal Circuit Court of Australia. The dispute involved the mother, Ms Ashford, and the father, Mr Ashford, regarding the care arrangements for their two children, X and Y.

The court was required to determine issues of parental responsibility, living arrangements, time spent with each parent, communication, and the provision of information concerning the children's health and education. Specific legal issues included the allocation of decision-making power for long-term issues, the practicalities of the children's time with each parent, and the communication protocols between the parents.

The court ordered that previous parenting orders be discharged and established new arrangements. The parents were to share parental responsibility for major long-term issues, with the mother having sole responsibility for education and health decisions, subject to notifying and considering the father's views. The children were to live with the mother, and specific time arrangements were set out for the father, including detailed provisions for school holidays and travel. The court also made orders regarding communication between the parents and children, the sharing of health and educational information, and mutual restraints on discussing proceedings or denigrating the other parent in the children's presence. These orders were made by consent in part and following a contested hearing.

Orders

Orders of the court

Save for these final Orders, all previous parenting Orders be discharged on and from 21 December 2015.

Parental Responsibility

Subject to paragraph 3 herein, the parties MS ASHFORD (“the mother”) and MR ASHFORD (“the father”) have shared parental responsibility for X born (omitted) 2000 (“X”) and Y born (omitted) 2003 (“Y”) (or collectively, “the children”) in relation to major long term issues.

The mother have sole parental responsibility for the children in relation to long term issues involving education and health.

For the purposes of paragraph 3 herein and subject to any emergency decisions being required, the mother:

(a) notify the father of any proposed decision and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and

(b) take into consideration any views expressed by the father about the proposed decision before making a final decision.

Each party have responsibility for decisions concerning the day to day care, welfare and development of the children whilst the children are in that party’s care.

Live With

The children live with the mother.

Spend Time With

The children spend time with the father as follows:

(a) during the New South Wales school holiday periods at the end of Terms 1 and 3, for eight (8) consecutive nights commencing on the first Saturday of the school holiday period;

(b) during the New South Wales school holiday periods at the end of Term 2, for twelve (12) consecutive nights commencing on the first Saturday of the school holiday period;

(i) for the school holiday period commencing at the end of Term 4 in 2015, for fourteen (14) consecutive nights commencing on 3 January; and thereafter

(ii) where the school holiday period commences in a year ending in an even number (eg. 2016), for twenty-one (21) consecutive nights commencing on the second day after the last day of Term 4; and

(iii) where the school holiday period commences in a year ending in an odd number (eg. 2017), for twenty-one (21) consecutive nights commencing on 3 January; and

(iv) such other times as the mother and the father may agree to in writing.

For the purposes of paragraph 7 herein, unless otherwise agreed between the mother and the father in writing, changeovers occur as follows:

(a) the father make the necessary arrangements for the children to travel from Sydney to (omitted), such that the children arrive at (omitted) by the evening of their first night with the father;

(b) the father bear the costs of such travel from Sydney to (omitted);

(c) the father notify the mother of the children's travel arrangements in writing and not less than seven (7) days prior to the day of travel; and

(d) if the father arranges for the children to:

(i) travel by train, the mother ensure that the children arrive at (omitted) Station in plenty of time to catch the train on which they are to travel;

(ii) travel by air, the mother shall ensure that the children arrive at Sydney Airport at the appropriate terminal in plenty of time to catch the flight on which they are to travel; or

(iii) travel by car, the mother ensure that the children are ready to be collected from the mother's home at the time specified by the father in his written notice about the travel arrangements, and

(e) the mother make the necessary arrangements for the children to travel from (omitted) to Sydney, such that the children depart from (omitted) on the morning after their last evening with the father;

(f) the mother bear the costs of such travel from (omitted) to Sydney;

(g) the mother notify the father of the children's travel arrangements in writing and not less than seven (7) days prior to the day of travel; and

(h) if the mother arranges for the children to:

(i) travel by train, the father ensure that the children arrive at the bus/coach departure point in (omitted) in plenty of time to catch the bus/coach on which they are to travel from (omitted) to W.W., where they are to catch the train to Sydney;

(ii) travel by air, the father ensure that the children arrive at the airport terminal in plenty of time to catch the flight on which they are to travel; or

(iii) travel by car, the father ensure that the children are ready to be collected from the father's home or from (omitted) at the place specified and at the time specified by the mother in her written notice about the travel arrangements.

Communicate With

The mother and the father facilitate the children communicating with the father by telephone between 11:00am and 11:30am every Saturday that they are not already with him, with the father to call the children on a number nominated by the mother and the mother take all reasonable steps to ensure that the children are available and able to answer the father's call.

10.

The mother and the father facilitate the children communicating with the mother by telephone between 11:00am and 11:30am every Saturday that they are not already with her, with the mother to call the children on a number nominated by the father and the father take all reasonable steps to ensure that the children are available and able to answer the mother's call.

11.

The mother and the father ensure that the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.

Authorisations and Provision of Information

Health

12.

The mother:

(a) provide the father with and keep him advised of the names and addresses of the children's treating doctors;

(b) inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to either of the children; and

(c) ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the mother's receipt of the report.

13.

Both the father and the mother be entitled to:

(a) attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and

(b) discuss the children's condition with such treating doctor or specialist medical consultant;

14.

The mother ensure that the father is notified as soon as practicable if, while in her care:

(a) either of the children is admitted to hospital;

(b) either of the children is involved in a medical emergency; and

(c) either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.

15.

The father ensure that the mother is notified as soon as practicable if, while in his care:

(a) either of the children is admitted to hospital;

(b) either of the children is involved in a medical emergency; and

(c) either of the children will be required to take medication when they return to the mother's care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following the children's return to the mother's care.

Education

16.

These Orders authorise any school which the children are attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.

17.

Both the mother and the father be permitted to attend:

(a) any school event relating to either of the children to which parents are ordinarily invited; and

(b) any of the children's extracurricular activities.

Contact Details

18.

The mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.

19.

The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

Restraints and Injunctions

20.

The mother and the father each:

(a) be restrained from:

(i) discussing these proceedings in the hearing of or presence of the children;

(ii) speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;

(b) take all reasonable steps to prevent any other person:

(i) discussing these proceedings in the hearing of or presence of the children;

Other Orders

21.

The Independent Children’s Lawyer explain these Orders to the children and thereafter, their appointment be discharged.

22.

All extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) Paragraphs 8 to 21 herein were made with the consent of the parties and the balance were made by the Court following a contested final hearing.

(B) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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