Barnham & Timbrell - [2021] FedCFamC1F 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barnham & Timbrell [2021] FedCFamC1F 36

File number(s): MLC 14446 of 2019

Judgment of: MACMILLAN J

Date of judgment: 14 September 2021

Catchwords:
FAMILY LAW – CHILDREN – where the mother seeks sole parental responsibility – where the mother makes allegations of abuse and family violence – where the father denies the allegations – where the presumption of equal shared parental responsibility applies – where the mother wishes to move with the children to Suburb B – where the mother proposes that the children live with her and spend time with the father each alternate weekend – where the father proposes that the children continue at their current schools – where the father proposes that subject to the mother living within 30 minutes drive of the children’s school the current week about regime be maintained or if the mother moves to Suburb B the children live with him and spend time with the mother each alternate weekend – where orders made for equal shared parental responsibility – where orders made that the children live not more than 30 minutes drive from their current schools – where mother given the opportunity to continue the current regime or in the alternative the children live with the father

FAMILY LAW – PROPERTY – where the mother seeks leave to file an application for property settlement and spousal maintenance out of time – where the parties have been separated for seven years – where there are three children of the relationship – where the father and mother had minimal property at the time of separation or as at the date of the hearing – where the father has had a substantial income but is now unemployed – where the mother is in full time employment – where the mother and the children will not suffer hardship if leave is not granted– where leave to file application out of time is not granted

Legislation:
Family Law Act 1975 (Cth) ss 44, 60B, 60CA, 60CC, 90SM

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Althaus v Althaus (1982) FLC 91-233

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Donnell & Dovey (2010) FLC 93-428

Edmunds & Edmunds (2018) FLC 93-847

Emerald v Emerald [2018] FamCAFC 217

Frost & Nicholson (1981) FLC 91-051

Gadzen v Simkin [2018] FamCAFC 218

Hall v Hall (1979) FLC 90-679

Mulvany & Lane (2009) FLC 93-404

Sharp v Sharp (2011) 50 Fam LR 567

Whitford and Whitford (1979) FLC 90-612

Division: Division 1 First Instance

Number of paragraphs: 78

Date of hearing: 10-11 May 2021

Place: Melbourne

Solicitor for the Applicant: In Person

Counsel for the Respondent: Mr Puckey QC

Solicitor for the Respondent: Lander & Rogers
ORDERS

MLC 14446 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BARNHAM

Applicant

AND:
MR TIMBRELL

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.All…

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 Barnham & Timbrell

Details

AGLC: Barnham & Timbrell [2021] FedCFamC1F 36
Case: [2021] FedCFamC1F 36
Decision Date: 14 September 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Court heard a case between Ms Barnham and Mr Timbrell regarding parenting arrangements and property settlement. The central issue was the relocation of the children to Suburb B by the mother, and the father's opposition to this move. The mother sought sole parental responsibility and alleged family violence, which the father denied. The court had to determine whether the children should relocate with their mother or remain living with their father. The court also considered the mother's application for leave to file an out-of-time application for property settlement and spousal maintenance. The mother had sought to relocate to New Zealand with the children, but later amended her position to seek a week-on, week-off arrangement if she moved to Suburb B or to maintain the existing arrangements if she remained within 30 minutes of the children's schools.

The court found that the presumption of equal shared parental responsibility applied. It determined that the children should live with the father during school terms and spend alternate weekends with the mother, provided she resides within 30 minutes of the children's schools. For school holidays, the children would alternate living with each parent. The court dismissed the mother's application for leave to file an out-of-time application for property settlement and spousal maintenance, finding that the mother would not suffer hardship if the application was not granted and that there were minimal assets to distribute. The court's decision focused on maintaining stability and continuity in the children's lives, considering their health and educational needs, and the parents' capacity to provide for them.

Orders

Orders of the court

MLC 14446 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BARNHAM

Applicant

AND:

MR TIMBRELL

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Father and Mother have equal shared parental responsibility for the children of the relationship, X born … 2009, Y born … 2011 and Z born … 2011 (“the children”).

3. The children spend time with the Mother during school terms as follows:

(a) In the event that the Mother's residence is within a 30 minute drive of the children’s school(s) in alternate weeks with changeover to take place at 3.30 pm each Monday in accordance with paragraph 15 of the orders herein or as may be otherwise agreed in writing;

(b) In the event that the Mother's residence is not within a 30 minute drive of the children’s school(s) from the conclusion of school Friday (or 3.30 pm if not a school day) until 5.00 pm Sunday, or as may be otherwise agreed in writing.

4. The children live with the Father at all other times during school term.

5. The children spend the first half of the school term holidays commencing at the conclusion of school until 3.30 pm on the day that is the midpoint of the said school term holidays with the Mother.

6. During the long summer school holiday period, the children live with each of the Father and the Mother for half of such time, as follows:

(a) with the Mother:

(i) for the first half of the 2021/2022 holiday period and each alternate year thereafter from the conclusion of school until 3.30 pm on the day that is the midpoint of the said holiday period and thereafter the children live with the father until the conclusion of the school holidays; and

(ii) for the second half of the 2022/2023 holiday period and each alternate year thereafter concluding at 5.00 pm on the last Friday of the said holiday period.

(b) with the Father:

(i) for the second half of the 2021/2022 holiday period and each alternate year thereafter from 3.30 pm on the day that is the midpoint of the said holiday period until the conclusion of the school holidays; and

(ii) for the first half of the 2022/2023 holiday period and each alternate year thereafter from the conclusion of school until 3.30 pm on the day that is the midpoint of the said holiday period.

7. For Christmas, in the event that both parties will be in Melbourne (and not overseas pursuant to paragraph 21 of the orders herein), the children spend time with each of the Father and Mother as follows:

(a) With the Mother from 1.00 pm on Christmas Day until 1.00 pm Boxing Day if it is an even numbered year; and

(b) With the Father from 1.00 pm on Christmas Day until 1.00 pm Boxing Day if it is an odd numbered year; and

8. For Easter, if not during school term holidays, the children spend time with each of the Father and the Mother as follows:

(a) With the Mother:

(i) from 12 noon on Good Friday until 12 noon on Easter Sunday in 2022 and each alternate year thereafter; and

(ii) from 12 noon on Easter Sunday until 5.00 pm Easter Monday in 2023 and each alternate year thereafter; and

(b) With the Father:

(i) from 12 noon on Easter Sunday until 5.00 pm Easter Monday in 2022 and each alternate year thereafter; and

(ii) from 12 noon on Good Friday until 12 noon on Easter Sunday in 2023 and each alternate year thereafter;

9. In the event that the children would not normally be in the Father's care for the Father's birthday, they are to be returned to his care from 3.30 pm on his birthday until 9.00 am the following day.

10. In the event that the children would not normally be in the Mother's care for the Mother's birthday, they are to be returned to her care from 3.30 pm on her birthday until 9.00 am the following day.

11. For the children's birthdays:

(a) in the event that the children would normally be in the Mother's care, they are to be returned to the Father's care from 3.30 pm until 6.00 pm if the birthday falls on a school day or from 12.00 noon until 5.00 pm if the birthday falls on a non-school day; and

(b) in the event that the children would normally be in the Father's care, they are to be returned to the Mother's care from 3.30 pm until 6.00 pm if the birthday falls on a school day or from 12.00 noon until 5.00 pm if the birthday falls on a non-school day.

12. For Mother's Day, in the event that the children are not already in the Mother's care, they are to be returned to her care by 5.00 pm on the day before Mother's Day until 5.00 pm Sunday, or as may be otherwise agreed in writing.

13. For Father's Day, in the event that the children are not already in the Father's care, they are to be returned to his care by 5.00 pm on the day before Father's Day until the commencement of school or 9.00 am the following day.

14. When the children are in their care, each of the Father and the Mother is to facilitate the other parent's communication with the children by telephone between 5.00 pm and 5.30 pm each Wednesday and Sunday as well as to initiate such communication with the children and the other parent at all further and other reasonable times that the children, or any of them, shall request.

15. Changeovers take place at the children's school(s) however when it is not a school day, changeovers take place at the Location C (in Suburb D) or such other alternative location as may be agreed upon by the parties from time to time in writing.

16. The Father and the Mother be and are hereby restrained from entering the home of the other without prior consent in writing to do so.

17. Neither the Father nor the Mother is to leave the children (or any of them) unsupervised for a period of not more than three (3) hours.

18. In the event of an emergency requiring either the Father or the Mother to leave the children, or any of them, unsupervised for more than three (3) hours duration, the parent in whose care the children would normally be is to offer the other parent the first right of refusal to care for the children, or any of them, during such period.

19. Within seven (7) days of a request by either party to the other, the Father and the Mother shall do all such acts and things and sign all such documents as may be necessary or required to renew or obtain British, New Zealand and/or Australian passports for the children or any of them, including signing and returning to the other parent all passport application documents and consent forms and any other associated documents that may be required AND in the event that the Mother fails or refuses to comply with this paragraph then the Father be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian passport for the children without requiring the consent of the Mother with the Court hereby being satisfied that such order is in the children's best interests.

20. The Father shall retain possession of the children's passports and release said passports to the Mother for the purpose of overseas travel pursuant to paragraph 21 of the orders herein, with the Mother to return the passports to the Father via the children at the end of any overseas trip.

21. Both the Father and the Mother be at liberty to travel interstate and/or internationally with the children during times that the children are in their care pursuant to these Orders provided that:

(a) The travelling parent notify the other 30 days prior to any proposed international travel and provide the other parent with an itinerary, e-tickets (return) and details of the children's accommodation and contact numbers for the duration of the travel; and

(b) The travelling parent notify the other at least 48 hours prior to any proposed interstate travel and provide the other parent with an itinerary, e-tickets (if applicable) and details of the children's accommodation and contact numbers for the duration of the travel;

(c) Such travel is to occur within periods the children are scheduled by these orders to be in the travelling parent's care, save for the Christmas time provided in paragraph 7(a) of the orders herein which is suspended to allow the Father to travel to the United Kingdom if he so wishes and in paragraph 7(b) of the orders herein which is suspended to allow the Mother to travel to New Zealand if she so wishes.

22. In the event that the children or any of them suffer any medical emergency or require emergency medical treatment, the parent with whom the child/children is/are with at the time notify the other parent as soon as practicable of the said medical emergency or treatment and within not more than 12 hours including contact details of the medical practitioner(s) upon whom the child/children attended and details of any diagnosis or treatment plan including any medication prescribed.

23. The Father and the Mother be and are hereby restrained from:

(a) Denigrating the other party, members of the other party's family or the other party's partner to or in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person so doing; and

(b) Discussing these proceedings to or in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person so doing; and

24. The Father and the Mother do all such acts and things as may be necessary to keep the other fully informed at all times, and in at least forty-eight (48) hours, of any changes to:

(a) The address at which the children are living with them;

(b) Their residential and postal address; and

25. The parents ensure insofar as in reasonably practicable that the children attend their usual extracurricular activities during the period in which they are in their respective care.

26. The Father and the Mother forthwith each participate in and complete a post-separation parenting program for the purposes of enhancing their understanding of the benefit to the children in maintaining an ongoing relationship with the mother and the father following separation.

27. As soon as is reasonably practicable, the Father and the Mother both attend upon the children's treating general practitioner(s) and/or Paediatrician(s) for further assessment and referral (if necessary) to assist with respect to the children's challenging behaviours given their diagnosis of having Attention-Deficit/Hyperactivity Disorder and possibility of being on the Autism Spectrum.

28. The Mother’s Application for leave to be granted to file out of time for property and/or spousal maintenance orders pursuant s 44(6) of the Family Law Act 1975 (Cth) is hereby dismissed.

29. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

30. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

When the mother commenced proceedings in the Federal Circuit Court of Australia on 18 December 2019 and until she filed her Outline of Case shortly before the commencement of the final hearing she had been seeking orders permitting her to relocate to New Zealand with the children. And, although the mother sought leave out of time to apply for both property settlement and spousal maintenance, the key issue the Court was required to determine was whether the children should move to Suburb B and live with the mother or whether they should remain living in Suburb D and live primarily with the father. BACKGROUND The mother was born in New Zealand and is 43. The father was born in the United Kingdom and is 47. The parties met in London in 2000 and moved to Australia in 2006. The parties were in a de facto relationship for approximately fourteen years before separating in March 2014. There are three children of the relationship all of whom were born in Melbourne, X born in 2009 and is 12, and twins Z and Y both in 2011 and are 9 (“the children”). The eldest child X has been diagnosed as having Attention-Deficit/Hyperactivity Disorder (“ADHD”). Y has also undergone an ADHD assessment and although at the time of the final hearing the parties were awaiting the formal diagnosis they both accepted that it is likely that Y will be diagnosed with ADHD. The children are otherwise in good health. Until April 2021 the father was employed in a high level management role with a large resources company. At the time of the final hearing he was still unemployed. Approximately two to three months before the final hearing the mother commenced full time employment. The father has re-partnered and lives with his new partner. His partner’s children spend each alternate week with them. At the time of the hearing the mother did not have a partner. Following separation and until March 2018 the father and mother were able to agree upon arrangements for the children’s care without the need for parenting orders or there being any proceedings. During this period the children lived primarily with the mother and spent time, including overnight time with the father. This continued until 17 April 2018 when the father received an email from the mother advising him that she had decided “to move to New Zealand” with the children and that although he was due to pick them up from school on 18 April 2018 that she and the children had already left Australia. Thereafter the father invoked his rights of custody pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and on 23 July 2018, orders were made by the Family Court of New Zealand for the return of the children to Australia. The father travelled to New Zealand to collect the children on 29 July 2018 and they were in his care following their return to Australia. The mother remained in New Zealand until mid-December 2018. The parties participated in a mediation following the mother’s return to Australia agreeing upon a gradual increase of the children’s time with the mother intended to lead ultimately to a week about arrangement by mid-March 2019. The father deposes that the children continued to live with him almost exclusively until late February 2019 but that by April 2019 were spending week and week about with each of them. The week and week about arrangement is ongoing. HISTORY OF PROCEEDINGS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 14446 of 2019
Judgment of:	MACMILLAN J
Date of judgment:	14 September 2021
Catchwords:	FAMILY LAW – CHILDREN – where the mother seeks sole parental responsibility – where the mother makes allegations of abuse and family violence – where the father denies the allegations – where the presumption of equal shared parental responsibility applies – where the mother wishes to move with the children to Suburb B – where the mother proposes that the children live with her and spend time with the father each alternate weekend – where the father proposes that the children continue at their current schools – where the father proposes that subject to the mother living within 30 minutes drive of the children’s school the current week about regime be maintained or if the mother moves to Suburb B the children live with him and spend time with the mother each alternate weekend – where orders made for equal shared parental responsibility – where orders made that the children live not more than 30 minutes drive from their current schools – where mother given the opportunity to continue the current regime or in the alternative the children live with the father FAMILY LAW – PROPERTY – where the mother seeks leave to file an application for property settlement and spousal maintenance out of time – where the parties have been separated for seven years – where there are three children of the relationship – where the father and mother had minimal property at the time of separation or as at the date of the hearing – where the father has had a substantial income but is now unemployed – where the mother is in full time employment – where the mother and the children will not suffer hardship if leave is not granted– where leave to file application out of time is not granted
Legislation:	Family Law Act 1975 (Cth) ss 44, 60B, 60CA, 60CC, 90SM Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	Althaus v Althaus (1982) FLC 91-233 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Donnell & Dovey (2010) FLC 93-428 Edmunds & Edmunds (2018) FLC 93-847 Emerald v Emerald [2018] FamCAFC 217 Frost & Nicholson (1981) FLC 91-051 Gadzen v Simkin [2018] FamCAFC 218 Hall v Hall (1979) FLC 90-679 Mulvany & Lane (2009) FLC 93-404 Sharp v Sharp (2011) 50 Fam LR 567 Whitford and Whitford (1979) FLC 90-612
Division:	Division 1 First Instance
Number of paragraphs:	78
Date of hearing:	10-11 May 2021
Place:	Melbourne
Solicitor for the Applicant:	In Person
Counsel for the Respondent:	Mr Puckey QC
Solicitor for the Respondent:	Lander & Rogers

MLC 14446 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BARNHAM Applicant
AND:	MR TIMBRELL Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	14 SEPTEMBER 2021