ASHTON & FARLEY - [2020] FamCA 963

FAMILY COURT OF AUSTRALIA

ASHTON & FARLEY

[2020] FamCA 963

FAMILY LAW – CHILDREN – whether the child should live in a week about arrangement with both parents or live with the mother nine nights a fortnight and with the father for five nights a fortnight – dispute in the context of the mother abandoning plans to relocate to Adelaide and subsequently to Country M – on the last day of the trial the mother consented to orders requiring her to return the child from Adelaide to Melbourne – long-standing history of blatant defiance and contravention of court orders – Capacity of mother to encourage and facilitate a relationship between the child and the father – whether the mother should retain the child’s passport or the passport should remain with the father’s lawyers – should the child be permitted to travel to countries other than those which are signatories to the 1980 Hague Convention.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC
Evidence Act 1995 (Cth) s. 140

Re F: Litigants in Person Guidelines (2001) FLC 93-072
Bell & Nahos [2016] FamCAFC 244
McCall & Clark [2009] FamCAFC 92
Mazorski v Albright [2007] FamCA 520

APPLICANT:

Mr Ashton

RESPONDENT:

Ms Farley

FILE NUMBER:

MLC

14231

2018

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

7 – 9 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Alpass & Associates

THE RESPONDENT:

Self-represented

Orders

The child X, born … 2015 live with each parent on a shared care week about basis with changeover to take place each Monday morning at 9:00AM.
Unless otherwise agreed in writing, changeover referred to in order one hereof take place:
(a) until X commences primary school in 2021, at the father’s home;
(b) upon X commencing primary school in 2021, at her school.
X’s Australian passport shall be held by the applicant father’s solicitors and only released with joint written authorisation to give effect to paragraph 4 of these orders.
Each parent be permitted to take X on a holiday outside of the Commonwealth of Australia providing:
(a)unless the father provides his written consent to the contrary, the holiday is to a country which is a signatory to the 1980 Hague Convention;
(b)the travelling parent is to provide no less than 45 days written notice to the non-travelling parent of the proposed overseas travel pursuant to these orders;
(c)travel shall not take place during school term time;
(d)the travelling parent is to provide the other parent with the following information no less than 30 days prior to the intended travel:
(i)the name of the country or countries to which X will travel;
(ii)the names of individuals who will be travelling with X;
(iii)the dates upon which X will depart from and return to Australia;
(iv)the airlines on which X will travel, including provision of a copy of a return ticket for X;
(v)proof of travel insurance.

Note: The form of the…

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 ASHTON & FARLEY

Details

AGLC: ASHTON & FARLEY [2020] FamCA 963
Case: [2020] FamCA 963
Decision Date: 19 November 2020

CaseChat Overview and Summary

This case concerned a dispute between a mother and father regarding the living arrangements for their child, X. The primary issue was whether X should live with each parent on a week-about basis or in a different fortnightly arrangement. The dispute arose in the context of the mother's abandoned plans to relocate with X to Adelaide and subsequently to Country M. On the final day of the trial, the mother consented to orders requiring her to return X from Adelaide to Melbourne. The court also considered the mother's history of defiance and contravention of court orders, her capacity to encourage a relationship between X and the father, and the arrangements for X's passport and international travel.

The court was required to determine the most appropriate living arrangements for X, taking into account the parents' capacities and the child's best interests. Key legal issues included assessing the mother's ability to foster X's relationship with the father, given her past conduct, and deciding on the custody of X's Australian passport. Furthermore, the court had to consider whether X should be permitted to travel to countries that are not signatories to the 1980 Hague Convention.

Williams J reasoned that a week-about shared care arrangement was in X's best interests, noting the long-standing history of the mother's blatant defiance and contravention of court orders. The court found that this history, coupled with the mother's abandonment of relocation plans and subsequent consent to return X to Melbourne, indicated that the mother's capacity to encourage and facilitate a relationship between X and the father was compromised. Consequently, the court ordered that X live with each parent on a shared care week-about basis. The court also ordered that X's Australian passport be held by the father's solicitors, to be released only with joint written authorisation. Regarding international travel, the court permitted each parent to take X on holiday outside Australia, provided the holiday was to a country that is a signatory to the 1980 Hague Convention, unless the father provided written consent otherwise. Specific notice requirements and restrictions on travel during school term time were also imposed.

Orders

Orders of the court

The child X, born … 2015 live with each parent on a shared care week about basis with changeover to take place each Monday morning at 9:00AM.

Unless otherwise agreed in writing, changeover referred to in order one hereof take place:

(a) until X commences primary school in 2021, at the father’s home;

(b) upon X commencing primary school in 2021, at her school.

X’s Australian passport shall be held by the applicant father’s solicitors and only released with joint written authorisation to give effect to paragraph 4 of these orders.

Each parent be permitted to take X on a holiday outside of the Commonwealth of Australia providing:

(a) unless the father provides his written consent to the contrary, the holiday is to a country which is a signatory to the 1980 Hague Convention;

(b) the travelling parent is to provide no less than 45 days written notice to the non-travelling parent of the proposed overseas travel pursuant to these orders;

(d) the travelling parent is to provide the other parent with the following information no less than 30 days prior to the intended travel:

(i) the name of the country or countries to which X will travel;

(ii) the names of individuals who will be travelling with X;

(iii) the dates upon which X will depart from and return to Australia;

(iv) the airlines on which X will travel, including provision of a copy of a return ticket for X;

(v) proof of travel insurance.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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