BOURKE & ALVES - [2016] FCCA 1254

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOURKE & ALVES

[2016] FCCA 1254

Catchwords:
FAMILY LAW – Children – Parenting Orders – relocation – application to restrain mother from relocating residence of child from Sydney to Adelaide – one child aged 9 years – parental responsibility – equal shared parental responsibility – best interests of the child – views of the child – whether child should change schools during the school year.

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

Cases cited:
Bourke & Alves [2014] FCCA 2680
Cowley & Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597
Goode & Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
Heath & Hemming (No.2) [2011] FamCA 749
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
SCVG & KLD [2014] FamCAFC 42
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) 37 Fam LR 461; FLC 93-345
U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; FLC 93-112; [2002] HCA 36

Applicant:

MR BOURKE

Respondent:

MS ALVES

File Number:

SYC 4395 of 2014

Judgment of:

Judge Scarlett

Hearing dates:

16-17 July 2015

Date of Last Submission:

14 August 2015

Delivered at:

Sydney

Delivered on:

18 May 2016

REPRESENTATION

Counsel for the Applicant:

Ms Kennedy

Solicitors for the Applicant:

The Norton Law Group

Counsel for the Respondent:

Mr Schonell

Solicitors for the Respondent:

Walker, Kissane & Plummer

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.
The child X is to live with the Mother.
The Mother is permitted to relocate the residence of the child X from the State of New South Wales to Adelaide in the State of South Australia with effect from 28 December 2016;
UNTIL 27 December 2016 the child X is to spend time with the Father as follows:
(a)Each alternate weekend during the school term from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;
(b)On the weekend that includes Father’s Day from 4:30 pm on the Friday until the commencement of school on the following Monday;
(c)For half of each New South Wales school holiday period by agreement or failing agreement for the second half commencing at 9:00 am on the middle Saturday of the school holiday period;
(d)For a period of three (3) hours on the child’s birthday being (omitted); and
(e)From 10:00 am on Christmas Day until 12:00 noon on Boxing Day 2016.
FROM AND AFTER 28 December 2016 the child X is to spend time with the Father as follows:
(a)During each of the mid-year school term holidays and excepting the Christmas/January school holiday period for nine (9) consecutive days on days agreed between the parties and failing agreement on the first…

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 BOURKE & ALVES

Details

AGLC: BOURKE & ALVES [2016] FCCA 1254
Case: [2016] FCCA 1254
Decision Date: 18 May 2016

CaseChat Overview and Summary

This matter concerned parenting orders for the child X, born in 2006, between the Applicant Father and the Respondent Mother. The primary dispute revolved around the Mother's proposed relocation of the child from New South Wales to Adelaide, South Australia, and the consequential arrangements for the child's time with each parent. The decision was made by Judge Scarlett.

The court was required to determine the appropriate parenting orders, including whether to permit the relocation of the child to South Australia, and to establish a new schedule for the child's time with each parent that would accommodate this relocation. The court also needed to consider provisions for communication between the child and each parent, travel arrangements, and other matters relating to the child's welfare and the parents' responsibilities.

Judge Scarlett discharged all earlier parenting orders and made new orders reflecting equal shared parental responsibility. The child was ordered to live with the Mother, who was permitted to relocate the child to Adelaide from 28 December 2016. The orders detailed specific arrangements for the child's time with the Father both before and after the relocation, including provisions for school holidays, weekends, and special occasions. The court also made orders regarding communication, travel, and the parents' obligations to inform each other of significant events and changes in circumstances, including restrictions on criticising each other and requirements for consent regarding school enrolment and extracurricular activities.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.

The child X is to live with the Mother.

The Mother is permitted to relocate the residence of the child X from the State of New South Wales to Adelaide in the State of South Australia with effect from 28 December 2016;

UNTIL 27 December 2016 the child X is to spend time with the Father as follows:

(a) Each alternate weekend during the school term from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;

(b) On the weekend that includes Father’s Day from 4:30 pm on the Friday until the commencement of school on the following Monday;

(c) For half of each New South Wales school holiday period by agreement or failing agreement for the second half commencing at 9:00 am on the middle Saturday of the school holiday period;

(d) For a period of three (3) hours on the child’s birthday being (omitted); and

(e) From 10:00 am on Christmas Day until 12:00 noon on Boxing Day 2016.

FROM AND AFTER 28 December 2016 the child X is to spend time with the Father as follows:

(a) During each of the mid-year school term holidays and excepting the Christmas/January school holiday period for nine (9) consecutive days on days agreed between the parties and failing agreement on the first nine (9) days of each holiday period in odd numbered years and the last nine (9) days of each holiday period in even numbered years;

(b) During the Christmas/January school holiday period from 2 January to 22 January in each year;

(c) During each school term on the fourth weekend of the month commencing from after school on the Friday until 7:00 pm on the Sunday; and

(d) From after school on Friday until 7:00 pm on Sunday on the weekend that includes Father’s day in each year.

For the purposes of Orders (7)(c) and (7)(d) above the Father’s time with the child commences from the time that the child boards the aircraft in Adelaide to travel to Sydney and concludes at the time the child boards the aircraft in Sydney to return to Adelaide.

The Father is permitted to telephone or FaceTime the child at all reasonable times and the Mother is to permit and not interfere with the child initiating and receiving telephone calls or FaceTime communication and if the parties cannot agree on reasonable times, then such telephone calls or FaceTime communication are to be initiated by the Father and made each Tuesday, Thursday and Sunday when the child has not spent time with the Father on those days.

The Mother is permitted to telephone or Skype the child at all reasonable times when the child is in the care of the Father and the Father is to permit and not interfere with the child initiating and receiving telephone calls or Skype communication and if the parties cannot agree on reasonable times, then such telephone calls are to be initiated by the Mother and made each Tuesday, Thursday and Sunday when the child has not spent time with the Mother on those days.

10.

Where the Orders provide that the Father’s time with the child is to commence after school, the Mother must deliver the child to the airport in Adelaide and ensure that the child has boarded a flight agreed with the Father for a direct flight to Sydney and the Mother is to collect the child from Adelaide airport at the end of the time that the child is to spend with the Father and if the parties cannot agree on a flight either to or from Adelaide, the child is to board the flight nominated by the Father no less than seven (7) days prior to the departure dates for the purpose of changeovers in Adelaide and Sydney.

11.

The Mother is to pay all costs and airfares associated with flights from Adelaide to Sydney and Sydney to Adelaide as provided in Order (10) above in a timely manner so as to ensure that the flights are pre-booked and paid for.

12.

The parties are restrained from:

(a) criticising or denigrating each other or members of the other party’s family in the presence or hearing of the child or permitting any third person to do so; or

(b) enrolling the child in extracurricular activities without the consent of the other parent.

13.

The Mother must obtain the written consent of the Father before enrolling the child into any school in the Adelaide area.

14.

The Mother must ensure that the Father’s details including his current address and telephone number from time to time are placed on any enrolment application for the child to attend any school from time to time so that the Father may be included as a person of contact and the Mother must otherwise ensure that the father’s details are kept up-to-date at the child’s school.

15.

Within seven (7) days from the date of these Orders the parties must do all things necessary including providing authority necessary to enable both parties to communicate with the child’s school and obtain all information and copies of documents from the child’s school as each of them may request in relation to the child.

16.

Each party must notify the other as soon as reasonably practicable of any accident or emergency involving the child which involves medical treatment or hospitalisation whilst the child is in their respective care.

17.

Each party must inform the other in writing of any change to his or her residential address not less than fourteen (14) days prior to such change occurring and any change to his contact telephone numbers within seven (7) days of such change occurring.

18.

The Mother must ensure to inform the father by email or other means of any milestone events as they occur in the child’s day-to-day life.

19.

For the purposes of any international holiday travel:

(a) The party intending to travel is to obtain the written consent of the other party or a Court Order in relation to a specific period of travel;

(b) The party intending to travel is to provide the other party within one (1) month of the intended departure date written details of the intended travel including:

(i) Proposed departure dates from and return to Australia;

(ii) Copy of proposed itinerary;

(iii) Proposed airline;

(iv) Places intended to visit whilst away from Australia;

(v) Details of how the child can be contacted whilst away from Australia including telephone contact numbers and addresses (if known) and Skype addresses; and

(vi) If the other party being the party not intending to travel does not consent to the travel arrangements as provided by the above Orders then that party must within fourteen (14) days of receipt of the particulars as provided in accordance with Orders (19)(i) to (v) provide to the other party written reasons for their refusal to consent to the proposed travel.

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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