BICKERT & OAKDEN - [2021] FCCA 14

FEDERAL CIRCUIT COURT OF AUSTRALIA

BICKERT & OAKDEN

[2021] FCCA 14

Catchwords:
FAMILY LAW – Relocation application from Town B to City C – parties have agreed to equal time for the next 15 months prior to the child commencing school –– father’s conduct and attitude towards mother troubling – mother shows more maturity in her parenting and honesty in her communications with the father – mother respects the role of the father – mother has capacity to help child achieve her full potential in life.

Legislation:

Family Law Act 1975 (Cth), Pt.VII, ss.4, 60CC, 61DAA, 65DAA

Cases cited:

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

MRR v GR 240 CLR 461; [2010] HCA 4

Taylor & Barker (2007) 37 Fam LR 461;[2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36

Applicant:

MS BICKERT

Respondent:

MR OAKDEN

File Number:

CSC 860 of 2019

Judgment of:

Judge Willis AM

Hearing dates:

8 and 9 September 2020

Date of Last Submission:

9 September 2020

Delivered at:

Cairns

Delivered on:

29 January 2021

REPRESENTATION

Counsel for the Applicant:

Mr McGregor

Solicitors for the Applicant:

Mk Family Law

Counsel for the Respondent:

Mr Fellows

Solicitors for the Respondent:

Cope Family Law

ORDERS

IT IS ORDERED BY CONSENT THAT:

Parental Responsibility

That the parents are to have equal shared parental responsibility for the child, namely X born in 2016 (“the child”).
Without limiting the parental responsibility of either parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child. For the purpose of these Orders, “significant parenting issues” are:
(a)Any medical or health matters concerning the child undergoing any medical intervention by a medical practitioner or being prescribed any medication by a practitioner, with any medical reports to be provided to the other parent;
(b)Any medical or health matters affecting either parent which may affect the ability of that parent to care for the child;
(c)Matters relating to the education of the child including, but not limited to, the choice of the school and curriculum and the provision to the other parent of all school reports, school photographs and all communication from the child’s school other than in respect of routine or administrative matters;
(d)Disciplinary matters other than a trivial nature;
(e)Matters concerning the social development and sporting activities of the child;
(f)Matters concerning the religion or faith of the child;
(g)Any intended change in the surname by which the child is commonly known from that which appears on the child’s birth certificate;
(h)Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either parent;
(i)Generally, any other matter regarding the child in respect of which a parent should be informed or consulted with respect to having regards to the provisions of Part 7 of the Family Law Act1975 (Cth) (as amended).
That…

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 BICKERT & OAKDEN

Details

AGLC: BICKERT & OAKDEN [2021] FCCA 14
Case: [2021] FCCA 14
Decision Date: 29 January 2021

CaseChat Overview and Summary

This matter concerned parenting orders made by consent between the Mother and Father regarding their child, X, born in 2016. The dispute centred on the arrangements for parental responsibility, the child's living arrangements, and communication between the parents.

The court was required to determine the extent of parental responsibility, including how significant parenting issues would be managed. It also needed to establish the child's living arrangements, both in the short term until the child commenced school and thereafter, considering the parents' respective locations. Further issues included provisions for the Father's time with the child, travel arrangements, communication protocols, and specific arrangements for holidays and birthdays.

By consent, the court ordered that the parents share equal parental responsibility for the child, with each parent to be kept informed and to consult the other on significant parenting issues. These issues were defined to include medical and health matters, education, disciplinary matters, social development, religion, changes to the child's surname, and alterations to living arrangements that impact time with a parent. Day-to-day decisions were to be made by the parent with whom the child was living at the time. The orders then detailed specific living arrangements, including equal time until school commenced, followed by the child living with the Mother in City C from January 2022. Provisions were made for the Father's time with the child, including school holidays and monthly weekends, with alternative arrangements if the Father relocated to City C. The orders also addressed travel costs, changeovers, communication, special days, and restrictions on removing the child from Queensland without consent.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT:

Parental Responsibility

That the parents are to have equal shared parental responsibility for the child, namely X born in 2016 (“the child”).

Without limiting the parental responsibility of either parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child. For the purpose of these Orders, “significant parenting issues” are:

(a) Any medical or health matters concerning the child undergoing any medical intervention by a medical practitioner or being prescribed any medication by a practitioner, with any medical reports to be provided to the other parent;

(b) Any medical or health matters affecting either parent which may affect the ability of that parent to care for the child;

(c) Matters relating to the education of the child including, but not limited to, the choice of the school and curriculum and the provision to the other parent of all school reports, school photographs and all communication from the child’s school other than in respect of routine or administrative matters;

(d) Disciplinary matters other than a trivial nature;

(e) Matters concerning the social development and sporting activities of the child;

(f) Matters concerning the religion or faith of the child;

(g) Any intended change in the surname by which the child is commonly known from that which appears on the child’s birth certificate;

(h) Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either parent;

(i) Generally, any other matter regarding the child in respect of which a parent should be informed or consulted with respect to having regards to the provisions of Part 7 of the Family Law Act 1975 (Cth) (as amended).

That the parent with whom the child is living at any time is to have responsibility for the day-to-day decisions affecting the child.

Living arrangements until January 2022

From the date of this Order until the child commences her first year of school in 2022, the child will live with each of the Mother and Father on an equal time basis as follows:-

(a) The Mother for a period of three weeks and each alternate three week period thereafter; and

(b) The Father for a period of three weeks and each alternate three week period thereafter.

IT IS ORDERED THAT:

As from January 2022 when the child commences school/prep the child’s living arrangements will be as follows:-

As from January 2022 when the child commences prep the child will live with the Mother in City C.

The Mother and Father will do all acts and things to ensure that the child is relocated to live with the Mother in City C no later than one week prior to the first day of school/ Prep.

Father’s time with the child whilst the Father remains living in Town B

Upon the child commencing school/prep, the Father will spend time with the child as agreed between the parents but failing agreement, as follows:

(a) For one half of the Queensland gazetted school holidays (not including Christmas Eve, Christmas Day and Boxing Day) with the Father to spend time for the first half of such holidays in odd numbered years and the second half of such holidays in even numbered years;

(b) Upon the giving of seven (7) days’ notice to the Mother, the Father will spend time with the child one (1) weekend per month in months other than school holiday months;

(c) If the Father is not spending time with the child as per Order 7(b), the Father may nominate that the child spend such time with the Paternal Grandparents in lieu of himself.

(d) Any other time as agreed to in writing between the parties.

Living arrangements for the child in the event that the Father permanently relocates to City C

In the event that the father relocates to City C, the child live with each parent on an equal shared basis on a week on/week off arrangement and the child will live with each parent for one half of all school holidays alternating between the first and second half each year.

Costs of Travel

Each of the parents will be responsible for one half of the actual total cost of travel for the child including the costs of any accompanying adult. The cost of the travel is to be based upon any concessional airfare able to be obtained by the father due to his “local” status. The father is to do all acts and things to access any concessional airfare when he is able to do so whilst he lives in Town B.

Changeovers

10.

All changeovers should occur to and from the parent’s home or the relevant airport or other agreed place. In the event that the parties are in the same locality, changeovers should occur to and from school on school days and from the parent’s homes on non-school days unless agreed otherwise.

Facetime/Telephone communication

11.

Commencing from the date of this Order, both parents are to have reasonable and regular telephone/FaceTime contact with the child when the child is not in their care as agreed between the parents but failing agreement, each Tuesday and Thursday between such hours as are agreed to but failing agreement, between the hours of 6:00pm and 6:30pm with the parent who does not have the child to initiate the call.

Mother’s Day/ Father’s Day

12.

Commencing from the date of this Order, in the event that the child is living with the Mother and the parents are in the same locality, the child will spend time with the Father from the close of day-care/school on a Friday until 4:00pm on Father’s Day on the Father’s Day weekend.

13.

Commencing from the date of this Order, in the event that the child is spending time with the Father pursuant to these Orders, and the parents are in the same locality, the child will spend time with the Mother from the close of day-care/school on a Friday until 4:00pm on the Mother’s Day weekend.

14.

Commencing from the date of this Order, in the event the parents are not in the same locality on Mother’s Day or Father’s Day, the parent not spending time with the child will have Facetime/telephone communication with the child between the hours of 6:00pm and 6:30pm with that parent to initiate the call.

Parents’/child’s birthday

15.

In the event the child is living with the Mother or Father on the other parents’ birthday, in the event the parents are in the same locality, the child will spend time with the birthday parent as follows unless agreed otherwise:-

(a) On a school day for a period of four (4) hours from the conclusion of school; and

(b) On a non-school day, for a period of five (5) hours between 2:00pm and 7:00pm.

16.

On the child’s birthday in the event the parents are in the same locality, the child is to spend time with the parent whom she is not otherwise living. On a school day, the child will spend four (4) hours with the non-resident parent and on a non-school day the child will spend one half of the day with the non-resident parent.

Christmas Eve, Christmas Day and Boxing Day

17.

The child will spend time with the parents during such specified days as agreed between the parents but failing agreement, as follows:

(a) If the parents are in the same locality:

(i) With the Father from 1:00pm Christmas Day until 1:00pm Boxing Day in even numbered years and alternating each year thereafter;

(ii) With the Mother from 1:00pm Christmas Eve until 1:00pm Christmas Day in odd numbered years and alternating each year thereafter.

(b) If the parents are not in the same locality, they will alternate the Christmas week to include such days with the Father to have the Christmas week of the Queensland gazetted school holidays in even numbered years and the Mother in odd numbered years.

Restrictions

18.

The Mother and Father are restrained from:

(a) Removing the child from the State of Queensland without the prior written agreement of the other parent;

(b) Denigrating the other parent or their spouse or family to or in the presence or hearing of the child and each parent will remove the child from the presence or hearing of any person doing so.

IT IS ORDERED BY CONSENT THAT:

Itinerary

19.

If a parent wishes to take the child out of the State of Queensland they are to obtain the prior written consent from the other party (pursuant to Order 18(a) herein) and the relevant parent will provide to the other parent a written itinerary 21 days prior to the intended departure. The itinerary must include:

(a) The date the child will be leaving and returning;

(b) Where the child will be travelling to;

(c) The mode of transport (including flight times and flight numbers, and/or similar information in the event of bus travel or train travel (if any); and

(d) The address and contact number relevant to where the child will be staying each night the child is away.

THE COURT ORDERS THAT:

Other Orders

20.

This Order will be sufficient authority for all schools, medical practitioners (general and specialists), dentists, psychologists, psychiatrists, counsellors and other allied health professionals dealing with the child to provide to the parents any and all information concerning the child that is usually provided to parents and each parent will be responsible for any related expense.

21.

The Mother and Father are to notify the other, via text or email, of any change of address or telephone number or email address within forty-eight (48) hours of any change.

22.

All outstanding applications are removed from the pending cases list.

Background

Background to the litigation

Full text does not contain this section.

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.