BEST & BEST - [2020] FCCA 628

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEST & BEST

[2020] FCCA 628

Catchwords:
FAMILY LAW – Parenting – children’s relationships with each of their parents – competing “live with” applications – best interests of children.

Legislation:

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

Cases cited:

Best & Best [2017] FCCA 1684

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MR BEST

Respondent:

MS BEST

File Number:

PAC 5790 of 2015

Judgment of:

Judge Obradovic

Hearing date:

18, 19 and 20 November 2019

Date of Last Submission:

20 November 2019

Delivered at:

Parramatta

Delivered on:

20 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Rosic

Solicitors for the Applicant:

Joseph Grassi & Associates

Counsel for the Respondent:

Mr Reeves

Solicitors for the Respondent:

Mahony Family Lawyers

ORDERS

All prior parenting orders with respect to the children X born … 2008 and Y born … 2011 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The mother is restrained by injunction from changing the children’s residence from the Town C Local Government Area for a period of 12 months from the date of these Orders.
Provided the children and the parents are all living in the Town C Local Government Area, the children shall spend time with the father during school term time as follows:
(a)In week one, each alternate week from after school on Friday until the commencement of school Monday;
(b)In week two, from after school Wednesday until the commencement of school on Thursday;
If the children and the parents are not all living in the Town C Local Government Area, the children shall spend time with the father during school term as agreed, but failing agreement each alternate weekend from 6pm Friday to 6pm Sunday.
The children shall spend time with father during school holidays as follows:
(a)During the school holidays at the end of Terms 1, 2 and 3 each school year for one week as agreed between the parents and in the absence of agreement the first week of the school holidays from after school on the last day of school until 6pm the following Friday;
(b)For school holidays commencing at the end of Term 4 each year as agreed between the parents and in the absence of agreement in years ending in an odd number the first half and in years ending in an even number the second half; and
(c)As otherwise agreed between the parents.
The children shall spend time with the father on the Father’s Day weekend from the conclusion of school on Friday until the commencement of school on the day following Father’s Day.
The children shall spend time with the father when the Easter Long Weekend falls outside of the gazetted school holiday period on the first instance from after school on…

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.

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Details

AGLC: BEST & BEST [2020] FCCA 628
Case: [2020] FCCA 628
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the matter of BEST & BEST, Judge Obradovic of the Family Court of Australia considered competing applications for "live with" orders concerning two children, X and Y. The central dispute revolved around the children's relationships with each of their parents and what arrangements would best serve their overall interests.

The court was required to determine the primary residence of the children and the nature and extent of the time each parent would spend with them. This involved assessing the evidence presented by both the mother and the father in relation to their respective capacities to care for the children and the impact of proposed living arrangements on the children's well-being and their relationships with both parents.

Judge Obradovic reasoned that the best interests of the children necessitated a clear primary residence. The court ordered that all prior parenting orders be discharged and that the mother have sole parental responsibility, with the children to live with her. The mother was also restrained from changing the children's residence from a specific local government area for 12 months. The judgment then detailed specific arrangements for the children to spend time with the father during school terms, school holidays, and on specific public holidays, including Christmas and Easter, with provisions for agreed arrangements or default schedules if agreement could not be reached. Further orders addressed communication, notification of medical emergencies, school involvement, travel, and discipline.

Orders

Orders of the court

All prior parenting orders with respect to the children X born … 2008 and Y born … 2011 (“the children”) are discharged.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The mother is restrained by injunction from changing the children’s residence from the Town C Local Government Area for a period of 12 months from the date of these Orders.

Provided the children and the parents are all living in the Town C Local Government Area, the children shall spend time with the father during school term time as follows:

(a) In week one, each alternate week from after school on Friday until the commencement of school Monday;

(b) In week two, from after school Wednesday until the commencement of school on Thursday;

If the children and the parents are not all living in the Town C Local Government Area, the children shall spend time with the father during school term as agreed, but failing agreement each alternate weekend from 6pm Friday to 6pm Sunday.

The children shall spend time with father during school holidays as follows:

(a) During the school holidays at the end of Terms 1, 2 and 3 each school year for one week as agreed between the parents and in the absence of agreement the first week of the school holidays from after school on the last day of school until 6pm the following Friday;

(b) For school holidays commencing at the end of Term 4 each year as agreed between the parents and in the absence of agreement in years ending in an odd number the first half and in years ending in an even number the second half; and

The children shall spend time with the father on the Father’s Day weekend from the conclusion of school on Friday until the commencement of school on the day following Father’s Day.

The children shall spend time with the father when the Easter Long Weekend falls outside of the gazetted school holiday period on the first instance from after school on the Thursday before Good Friday until 10am on Easter Sunday and then on the next occasion from 10am Easter Sunday until the commencement of school on Tuesday and alternating thereafter.

10.

The children shall spend time with the father on Christmas as follows:

(a) In each odd numbered year from 12 noon on 25 December until 12 noon on 26 December and each alternate year thereafter; and

(b) In each even numbered year from 12 noon on 24 December until 12 noon on 25 December and each alternate year thereafter.

11.

Should order 10(a) or 10(b) above conflict with any other order herein then orders 10(a) or 10(b) shall apply and the conflicting order/s shall be temporarily suspended so as to permit compliance with orders 10(a) or 10(b).

12.

Notwithstanding any other order the children shall spend time with the mother on Christmas as follows:

(a) In each even numbered year from 12 noon on 25 December until 12 noon on 26 December and each alternate year thereafter; and

(b) In each odd numbered year from 12 noon on 24 December until 12 noon on 25 December each alternate year thereafter.

13.

In the event that changeover does not occur at school the parents shall deliver the children to and collect the children from McDonald’s at Location D or a half-way point between the parent’s respective residences as agreed between the parents.

14.

In the event that the Mother’s Day weekend falls on a weekend that the children would otherwise be spending time with the father then that time shall be suspended so that the children can remain with the mother for that weekend.

15.

Each parent is permitted to contact the children by telephone at all reasonable times and with reasonable frequency when the children are not in their care.

16.

Each parent shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.

17.

Each parent shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the children or either of them including sufficient details to enable both parents to be fully advised regarding such illness or condition and any treatment recommended or provide and both parents shall be at liberty to visit the child/ren if hospitalised (Note: This order is subject to Order 2 herein).

18.

Each parent shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other parent the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parents shall be entitled to fully participate in all and any activities at the school or connected with the school.

19.

Neither parent shall change the children’s place of residence without giving the other parent written notice not less than 42 days before any proposed change.

20.

The parents shall forthwith do all acts and things and sign all necessary documents to ensure that the children have a valid passport including but not limited to the execution of any application for a passport/application for renewal of a passport.

21.

In the event that either parent proposes to travel overseas with the children for any period, then at least two months written notice must be given to the other parent, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone numbers and addresses of where the children and/or the parent will be residing for the duration of the proposed travel.

22.

Unless either parent is travelling with the children outside the Commonwealth of Australia, the children’s passports are to then remain in the custody and control of the mother.

23.

The parents shall not use physical force upon the children for the purpose of discipline and shall not permit any other person to do so.

24.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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