Birdwood and Heggarty - [2014] FCCA 1546

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRDWOOD & HEGGARTY

[2014] FCCA 1546

Catchwords:
FAMILY LAW – Parenting – children’s relationship with their father has broken down – father lacks insight – parenting orders seeking to micromanage both parents behaviour to an unrealistic degree – whether or not orders should be made to the father spend time with children at fixed times or in accordance with their wishes.

Legislation:

Family Law Act 1975, pt. VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Rice v Asplund (1978) 6 Fam LR 570
Nash & Reis [2013] FMCAfam 11
Scott & Kent [2013] FCCA 127

Pauli v Beffa [2013] FamCa 144

Jones v Dunkel (1959) 101 CLR 298

Applicant:

MS BIRDWOOD

Respondent:

MR HEGGARTY

File Number:

DNC 626 of 2007

Judgment of:

Judge Harland

Hearing dates:

22, 23 and 24 April and 26 May 2014

Date of Last Submission:

26 May 2014

Delivered at:

Darwin

Delivered on:

17 July 2014

REPRESENTATION

Counsel for the Applicant:

Ms Truman

Solicitors for the Applicant:

DS Family Law

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Northern Territory Legal Aid Commission

Counsel for the Independent Children's Lawyer:

Ms Terrill

Solicitors for the Independent Children's Lawyer:

Terrill & Associates

ORDERS

That the mother have sole parental responsibility of the children X born (omitted) 2003 and Y born (omitted) 2005 subject to the following conditions:
(a)The mother will text message or email the father of the decision required to be made and her proposal;
(b)The mother will consider any written response sent by the father provided it is received within 7 days of the mother’s initial text message; and
(c)The mother will inform the father of the decision she has made in writing.
That the children live with the mother.
That the children spend time with the father as and when sought by the children or either of them provided it does not interfere with their schooling.
That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
That the mother do all acts and things and give all irrevocable authorities necessary to ensure that the father can obtain directly from any health, welfare or other professional attended by the children, copies of any reports or notices of relevant verbal or written advice relating to the health and welfare of the children. For this purpose the mother will notify the father and keep him informed of the names and contact details of such health, welfare or other professional.
That the father is restrained by injunction from attending at the children’s schools unless at the specific request of both of the children if both children are attending…

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 Birdwood and Heggarty

Details

AGLC: Birdwood and Heggarty [2014] FCCA 1546
Case: [2014] FCCA 1546
Decision Date: 17 July 2014

CaseChat Overview and Summary

This matter concerned parenting orders sought by the mother and father in relation to their two children, X and Y. The dispute centred on the appropriate arrangements for the children's residence, time spent with each parent, and the extent of each parent's involvement in the children's schooling and welfare. The court was required to make orders that best served the interests of the children.

The court was tasked with determining the primary caregiver for the children, the nature and extent of the children's time with the non-resident parent, and the mechanisms for information sharing regarding the children's education and health. Further issues included the father's access to school-related activities, parental communication protocols, travel arrangements, and the possession of the children's passports. The court also considered undertakings provided by the mother regarding her ongoing psychological treatment and the children's therapeutic needs.

In its determination, the court made orders granting the mother sole parental responsibility for the children, subject to specific conditions requiring her to consult with the father on significant decisions and to inform him in writing of her final choices. The children were ordered to live with the mother, and to spend time with the father as sought by the children, provided it did not disrupt their schooling. The court also stipulated detailed provisions for the father to receive school reports and health information, and imposed an injunction restraining the father from attending at the children's schools unless specifically requested by both children. Provisions were also made for travel, communication, and the issuance and possession of passports, with the mother ultimately permitted to take the children on overseas holidays and to hold their passports. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That the mother have sole parental responsibility of the children X born (omitted) 2003 and Y born (omitted) 2005 subject to the following conditions:

(a) The mother will text message or email the father of the decision required to be made and her proposal;

(b) The mother will consider any written response sent by the father provided it is received within 7 days of the mother’s initial text message; and

That the children live with the mother.

That the children spend time with the father as and when sought by the children or either of them provided it does not interfere with their schooling.

That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

That the mother do all acts and things and give all irrevocable authorities necessary to ensure that the father can obtain directly from any health, welfare or other professional attended by the children, copies of any reports or notices of relevant verbal or written advice relating to the health and welfare of the children. For this purpose the mother will notify the father and keep him informed of the names and contact details of such health, welfare or other professional.

That the father is restrained by injunction from attending at the children’s schools unless at the specific request of both of the children if both children are attending the same school. The father is only at liberty to attend school functions and activities at the request of both of the children if the children are attending the same school. If the children are attending different schools, then the father shall only attend at that school or at any functions and activities at the specific request of the child attending that school.

That should the children be spending time with the father, changeovers are to occur at a place and time agreed to between the parents but if there is no agreement then at CatholicCare NT.

That should the mother wish to travel outside of Darwin with the children:

(a) The mother shall provide 14 days’ notice to the father of such travel including dates of travel, location of travel and emergency contact number for the children whilst the children are away.

(b) In the case of an emergency the mother shall provide 24 hours’ notice to the father of such emergency, together with dates of travel, location of travel and emergency contact number for the children whilst the children are away.

That each parent shall advise the other parent and keep the other parent advised of their current residential address and contact telephone number (landline and mobile numbers) and advise the other of any changes to these details within 48 hours of such change occurring.

10.

That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each parent do all things necessary to ensure that no third party makes critical or derogatory comments about the other parent in the presence or hearing of the children.

11.

That both parties do all things and sign all documents necessary for the children to be issued with current passports.

12.

That the father sign and return to the mother any passport applications within 14 days of receiving them. If he fails to do so the mother is permitted to apply for an Australian Passport without the consent of the father being obtained.

13.

That the mother be permitted to take the children on holidays overseas.

14.

That at all times the mother have possession of the children’s passports.

15.

That the Independent Children’s Lawyer is hereby discharged.

NOTATION

The mother undertakes she shall continue to attend appointments with a psychologist for such further period as the psychologist deems necessary.

The mother undertakes to arrange for X to attend upon Ms D for such further period as Ms D recommends and X agrees to attend.

The mother undertakes to arrange for Y to attend such therapy as recommended by Ms D for such further period as Ms D recommends and Y agrees to attend.

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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