BERTRAM & THORPE - [2014] FCCA 2863

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERTRAM & THORPE

[2014] FCCA 2863

Catchwords:
FAMILY LAW – Children – Parenting Orders – variation of Orders – overseas travel – travel arrangements – “micro-managing” parenting orders – courts should take a minimalist approach in making parenting orders – courts should only intervene when the welfare of the children will be advanced by making an order.

PRACTICE AND PROCEDURE – Urgent Application – where applicant father proposes to take children overseas on 26 December 2014.

Legislation:

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

Cases cited:
Finch & Harris (No.2) [2014] FCCA 2507
Nash & Reis [2013] FMCAfam 11
VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099

Applicant:

MR BERTRAM

Respondent:

MS THORPE

File Number:

SYC 2201 of 2010

Judgment of:

Judge Scarlett

Hearing date:

1 December 2014

Date of Last Submission:

1 December 2014

Delivered at:

Sydney

Delivered on:

10 December 2014

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

Order 5.b made on 8 June 2010 is suspended from 19 December 2014 until 25 January 2015.
The children X born (omitted) 2004 and Y born (omitted) 2005 are to spend time with the Applicant father as follows:
(a)From 5:00 pm on Friday 19 December 2014 until 10:00 am on Sunday 21 December 2014; and
(b)From 6:00 pm on 26 December 2014 until 5:00 pm on 14 January 2015.
The father is permitted to take the children X and Y out of Australia for the purposes of a holiday in the (country omitted) with effect from 26 December 2014.
The Respondent mother is permitted to spend time with the children X and Y out of Australia for the purposes of a holiday in the (country omitted) PROVIDED THAT the mother must return the children to Australia on or before 25 January 2015.
Changeover between the parents where the father delivers the children into the care of the mother for the purposes of the above Orders is to be at 5:00 pm on 14 January 2015 at a place in (country omitted) in the (country omitted) to be arranged between the parties.
For the purposes of the children’s travel out of Australia or return to Australia the parent who has the care of the children at the time in accordance with these Orders must accompany the children on any airline flight.
The father is to pay the costs of the children’s travel and accommodation including airfares out of Australia for all of their travel from 26 December 2014 until he delivers the children into the care of their mother on 14 January 2015.
The mother is to pay the costs of the children’s travel and accommodation including airfares from the (country omitted) to Australia from the time they are delivered into her care on 14 January 2015 until the date of their return to Australia.

IT IS NOTED that publication of this judgment under the pseudonym Bertram & Thorpe is approved pursuant to s.121(9)(g) 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 BERTRAM & THORPE

Details

AGLC: Bertram and Thorpe [2014] FCCA 2863
Case: [2014] FCCA 2863
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the matter of *Bertram & Thorpe*, Judge Scarlett of the Family Court of Australia considered an urgent application by the father concerning parenting orders for the parties' two children, X and Y. The dispute arose from the father's proposal to take the children overseas on 26 December 2014, which required a variation of existing orders.

The court was required to determine whether to suspend or vary the existing parenting orders to permit the father to take the children overseas and to make consequential arrangements for the children's time with both parents, including overseas travel for the mother. The central legal issue was how to balance the father's desire for overseas travel with the children's welfare and the existing parenting arrangements.

Judge Scarlett applied the principle that courts should adopt a minimalist approach when making parenting orders, intervening only when it advances the welfare of the children. The court reasoned that the proposed overseas travel by the father was in the children's best interests and that the existing orders needed to be adjusted to accommodate this. The court also permitted the mother to spend time with the children overseas, provided they were returned to Australia by a specified date.

The court made several orders, including suspending a specific part of an earlier order, detailing the children's time with the father, permitting the father to take the children overseas from 26 December 2014, and allowing the mother to take the children overseas with a requirement for their return by 25 January 2015. The orders also stipulated that the accompanying parent must travel with the children and allocated responsibility for travel and accommodation costs between the parents.

Orders

Orders of the court

Order 5.b made on 8 June 2010 is suspended from 19 December 2014 until 25 January 2015.

The children X born (omitted) 2004 and Y born (omitted) 2005 are to spend time with the Applicant father as follows:

(a) From 5:00 pm on Friday 19 December 2014 until 10:00 am on Sunday 21 December 2014; and

(b) From 6:00 pm on 26 December 2014 until 5:00 pm on 14 January 2015.

The father is permitted to take the children X and Y out of Australia for the purposes of a holiday in the (country omitted) with effect from 26 December 2014.

The Respondent mother is permitted to spend time with the children X and Y out of Australia for the purposes of a holiday in the (country omitted) PROVIDED THAT the mother must return the children to Australia on or before 25 January 2015.

Changeover between the parents where the father delivers the children into the care of the mother for the purposes of the above Orders is to be at 5:00 pm on 14 January 2015 at a place in (country omitted) in the (country omitted) to be arranged between the parties.

For the purposes of the children’s travel out of Australia or return to Australia the parent who has the care of the children at the time in accordance with these Orders must accompany the children on any airline flight.

The father is to pay the costs of the children’s travel and accommodation including airfares out of Australia for all of their travel from 26 December 2014 until he delivers the children into the care of their mother on 14 January 2015.

The mother is to pay the costs of the children’s travel and accommodation including airfares from the (country omitted) to Australia from the time they are delivered into her care on 14 January 2015 until the date of their return to Australia.

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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