Beatty and Rubin - [2015] FCCA 172

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEATTY & RUBIN

[2015] FCCA 172

Catchwords:
FAMILY LAW – Relocation – parents brief relationship following introduction through a dating agency results in unexpected pregnancy – two very good parents – involvement of solicitors correspondence adds to conflict and fuels further disputes – parents communicate directly with respect and courtesy – failure of solicitor to inspect subpoena material, adds conflict about diagnosis of separation anxiety – finely balanced matter – relocation application dismissed – father has much to offer their young son – mother’s proposals for contact four times a year living 4000 kilometres apart not in the child’s best interests.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Mazorksi & Albright [2009] FamCA 520
MRR v GR [2010] HCA 4
Taylor & Barker [2007] FamCA 1246
McCall & Clark (2009) FLC 93-405
Rice v Asplund (1979) FLC 90-725

Applicant:

MS BEATTY

Respondent:

MR RUBIN

File Number:

CSC 481 of 2013

Judgment of:

Judge Willis

Hearing dates:

3-5 November 2014

Date of Last Submission:

5 November 2014

Delivered at:

Cairns

Delivered on:

5 February 2015

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Murray & Lyons

Counsel for the Independent Children’s Lawyer:

Ms Wilson

Independent Children’s Lawyer:

Ms Lehmann, Lehmann Featherstone Lawyers

ORDERS

Parental Responsibility

That the parties each have equal shared parental responsibility for the child [X] born [omitted] 2010 (“the child”) regarding the long term issues concerning the care, welfare and development of the child including but not limited to:
(a)The child’s education;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name.

Child’s living arrangements

That the child live with the Mother in Cairns at all times, other than when he spends time with the father as agreed or pursuant to the terms of this Order.
That the father (who lives in Cairns) will spend time with the child at all times as may be agreed between the parents and failing agreement as follows:-

From November 2014 until January 2015

Each alternate weekend from 9:00 am Saturday until 5:30 pm Sunday; and
Each Wednesday from after day care or school until 7:00 pm.

From January 2015 until May 2015

Each alternate weekend from Friday afternoon until 5:30 pm Sunday; and
Each Wednesday from after school until 7:00 pm.

From May 2015 until January 2016

Each alternate weekend from after school Friday until the commencement of school on Monday (or Tuesday if a public holiday or pupil free day); and
Each Wednesday from after school until 7:00 pm.

From January 2016 until January 2017

From after school Thursday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and
Each alternate Wednesday from after school until 7:00 pm.

From January 2017

From after school Wednesday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and
Each alternate Wednesday from after school until 7:00 pm.

From January 2018

From after school Tuesday until before…

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 Beatty and Rubin

Details

AGLC: Beatty and Rubin [2015] FCCA 172
Case: [2015] FCCA 172
Decision Date: 5 February 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Willis in relation to the child [X]. The dispute centred on the arrangements for the child's living arrangements, time spent with each parent, and communication between parents and the child. The court also addressed issues concerning special days, school holidays, and general communication and handover protocols.

The court was required to determine the extent of parental responsibility for long-term issues concerning the child's care, welfare, and development, including education, religious and cultural upbringing, health, and name. Further, the court had to establish specific orders for the child's living arrangements, detailing the periods the child would spend with the mother and the father, including provisions for weekends, weekdays, school holidays, and special occasions such as birthdays and Christmas. The court also needed to set out communication protocols between the parents and the child, and establish handover procedures.

Judge Willis ordered that the parties share equal parental responsibility for long-term issues concerning the child. The child was ordered to live with the mother in Cairns, with the father to spend time with the child as agreed or in accordance with a detailed schedule that progressively increased the father's time with the child from November 2014 until January 2019. Specific provisions were made for school holidays, including Easter, June/July, September/October, and Christmas holidays, with alternating arrangements and specific durations outlined for different years. Special days, including Mother's Day, Father's Day, and birthdays, were addressed with provisions for time spent with the non-resident parent, subject to certain conditions regarding block holiday time. Communication by telephone or video call was to occur weekly, and handover procedures were specified.

The court also made general orders requiring parents to keep each other informed of contact details and to attend Family Dispute Resolution for any parenting disputes. The Independent Children's Lawyer was discharged, and all outstanding applications, including the mother's relocation application, were dismissed.

Orders

Orders of the court

Parental Responsibility

That the parties each have equal shared parental responsibility for the child [X] born [omitted] 2010 (“the child”) regarding the long term issues concerning the care, welfare and development of the child including but not limited to:

(a) The child’s education;

(b) The child’s religious and cultural upbringing;

(d) The child’s name.

Child’s living arrangements

That the child live with the Mother in Cairns at all times, other than when he spends time with the father as agreed or pursuant to the terms of this Order.

That the father (who lives in Cairns) will spend time with the child at all times as may be agreed between the parents and failing agreement as follows:-

From November 2014 until January 2015

Each alternate weekend from 9:00 am Saturday until 5:30 pm Sunday; and

Each Wednesday from after day care or school until 7:00 pm.

From January 2015 until May 2015

Each alternate weekend from Friday afternoon until 5:30 pm Sunday; and

Each Wednesday from after school until 7:00 pm.

From May 2015 until January 2016

Each alternate weekend from after school Friday until the commencement of school on Monday (or Tuesday if a public holiday or pupil free day); and

Each Wednesday from after school until 7:00 pm.

From January 2016 until January 2017

10.

From after school Thursday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and

11.

Each alternate Wednesday from after school until 7:00 pm.

From January 2017

12.

From after school Wednesday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and

13.

Each alternate Wednesday from after school until 7:00 pm.

From January 2018

14.

From after school Tuesday until before school Monday (or Tuesday if a public holiday or pupil free day) each alternate week;

From January 2019

15.

Each alternate week from after school Monday.

School Holidays

16.

The child will spend one half of the Easter, June/ July and September/ October school holiday periods with each parent in each year as follows:

(a) With the father for the first half of the gazetted school holiday periods each odd numbered year, and the second half of the gazetted school holiday periods in each even numbered year.

(b) With the mother for the second half of the gazetted school holiday periods in each odd numbered years, and the first half of the gazetted school holiday periods in even numbered years.

Christmas School Holidays 2015

17.

The child will spend alternating weeks with each parent (week on week off).

Christmas School Holidays 2016

18.

The child will spend three weeks with the father to be taken in periods of no greater than 2 weeks duration.

Christmas School Holidays 2017

19.

The child will spend one half of the Christmas school holidays with each parent as follows:

(a) The father to have the first half of the Christmas school holiday period in 2017 and each alternate year thereafter and the second half in 2018 and each alternate year thereafter;

(b) The mother to have the second half of the Christmas school holiday period in 2017 and each alternate year thereafter and the first half in 2018 and each alternate year thereafter.

Special Days

Mother’s Day and Father’s Day

20.

In the event that Father’s Day falls on a weekend that the child is not otherwise spending time with the father pursuant to his time in these Orders, or Mother’s Day falls on a weekend that the child is not living with her pursuant to the terms of these Orders, the parties will swap their respective weekends to ensure that the child spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother.

Birthdays

21.

On the child’s birthday the child shall spend time with the non-resident parent from 3:00 pm until 5:00 pm if the birthday falls on a school day and from 9:00 am until 2:00 pm if the birthday falls on a non-school day, with the non-resident parent to collect the child from school if it is a school day, subject to Order 24 herein.

22.

In the event that the mother’s birthday falls on a day when the child is living with the father pursuant to these Orders, then the mother shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm on her birthday, subject to Order 24 herein.

23.

In the event that the father’s birthday falls on a day when the child is living with the mother pursuant to these Orders, then the father shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm on his birthday, subject to Order 24 herein.

24.

Orders 21-23 herein will not apply if the child is otherwise spending block holiday time away from Cairns with the other parent during school holidays, as provided for in these Orders. In other words, Orders 21-23 for birthday time are not intended to interfere with either parent’s block holiday time with the child, in the event that the other parent is away from Cairns or has other plans for their holiday with the child.

Christmas Day

25.

In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from Cairns for the Christmas holidays, the parent with whom the child is living on the Christmas day will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, a period of 24 hours, after which time the child will be returned to the other parent to continue on with their holiday period. The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.

26.

In the even the parent who has the care of the child pursuant to Order 25 herein is travelling outside of the Cairns area of the Christmas days, they are to provide the other parent with 14 days notice.

Communication

27.

Each of the parents shall be permitted to communicate with the child by telephone or Skype or Facetime each Wednesday (or other time as agreed between the parties) when the child is not in that parent’s care between 5:00 pm and 5:30 pm. The non-resident parent shall initiate the call and the other parent will facilitate the call.

Handovers

28.

Handovers are to occur to and from the child’s school/day care on school/day care days. The non-collecting parent is not to attend school/day care at handover time. On non-school/day care days, handovers are to occur to and from the Cairns Central Carpark or other agreed location.

General Orders

29.

The Mother and the Father shall each keep the other informed of their current residential address, their current mobile telephone and landline telephone numbers and email address and shall advise the other parent of any changes within forty-eight (48) hours of any change.

30.

In the event of any parenting dispute the parties are to attend Family Dispute Resolution in an endeavour to resolve the dispute.

31.

The Independent Children’s Lawyer is discharged.

32.

All outstanding applications including the mother’s relocation application are dismissed and removed from the pending cases list.

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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