BOWEN & WILLIAMS - [2016] FamCA 725

FAMILY COURT OF AUSTRALIA

BOWEN & WILLIAMS

[2016] FamCA 725

FAMILY LAW – CHILDREN – Relocation – Where the mother is restrained from changing the residence of the child from the greater Brisbane Area – where no evidence was led as to whether the father could live in New Zealand – where employment opportunities for the father are scant – where it is not reasonably practical for the father to move to New Zealand – where the effect of relocation would not allow substantial and significant time – where the parents have equal shared parental responsibility – where child live and spend time with the parties as agreed between them –where parents have liberty to travel to a Hague Convention Country – where the mother attend upon her treating therapeutic psychiatrist and any other professional.

FAMILY LAW – PRACTICE AND PROCEDURE – Whether some part of the Court’s function has been discharged in an irrevocable way – where application to re-open unperfected judgement – where parties put on more evidence to determine if living in New Zealand would effect substantial and significant time – where substantial and significant time was the focus of the previous reasons, not relocation – where previous reasons did not determine or decide the issue of relocatiaon.

FAMILY LAW – PROPERTY – where review of the Family Law Act 1975 (Cth) section 90SM(4) factors was incomplete because of uncertainty in relation to parenting orders – where the father has a greater earning capacity than the mother – where there is an adjustment of 10 per cent for section 90SM(4) factors in favour of the mother – where father pays mother cash sum to reflect her entitlement in the former matrimonial home - where father indemnify the mother in relation to extant liabilities to Westpac and his New Zealand child support.

Family Law Act 1975 (Cth) ss 65DAA, 68B, 90SM(4)

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Bowen

RESPONDENT:

Ms Williams

FILE NUMBER:

BRC

7647

2013

DATE DELIVERED:

29 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Brasch QC

SOLICITORS FOR THE APPLICANT:

Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITORS FOR THE RESPONDENT:

Barry Nilsson Lawyers

Orders

PARENTING
Prior orders

All previous parenting orders are discharged.

Parental responsibility

The parties have equal shared parental responsibility of the child C born … 2011 (“the child”).
The parties jointly make all relevant decisions regarding the major long-term issues in relation to the child except in the case of emergency, and the parties shall consult each other in relation to decisions to be made about major long-term issue and make a genuine effort to come to a joint decision about that issue.
For the purposes of these orders, a major long-term issue includes but is not limited to issues such as:
(a)Education;
(b)Religion;
(c)Health;
(d)Extra-curricular activities; and
(e)Any change…

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 BOWEN & WILLIAMS

Details

AGLC: BOWEN & WILLIAMS [2016] FamCA 725
Case: [2016] FamCA 725
Decision Date: 29 August 2016

CaseChat Overview and Summary

The case of *Bowen & Williams* concerned a dispute between the mother and father regarding parenting arrangements for their child, C, and the division of their property. The mother sought to relocate with the child to New Zealand, which the father opposed. The court was required to determine the practicalities and implications of such a relocation, particularly in relation to the child spending substantial and significant time with the father, and to make final orders concerning both parenting and property.

The primary legal issues before the court were whether the mother should be permitted to relocate the child to New Zealand, and if so, what parenting arrangements would be in the child's best interests. The court also had to consider the division of the parties' property, taking into account the parenting orders and the respective earning capacities of the parties. The court was also asked to consider whether any part of its function had been discharged irrevocably, in relation to an application to re-open an unperfected judgment, and whether further evidence was required to determine the impact of relocation on substantial and significant time.

Justice Tree found that it was not reasonably practical for the father to move to New Zealand due to scant employment opportunities. Consequently, the court ordered that the mother be restrained from changing the child's residence from the greater Brisbane area without the father's written consent or a court order. The court also made detailed orders regarding equal shared parental responsibility, specific parenting time arrangements, school holidays, special occasions, and overseas travel. In relation to property, the court ordered the transfer of a property to the father, with the father to make a cash payment to the mother to reflect her entitlement to 60 per cent of the net property pool. The court also declared the sole ownership of various assets and liabilities to each party.

Orders

Orders of the court

PARENTING

Prior orders

All previous parenting orders are discharged.

Parental responsibility

The parties have equal shared parental responsibility of the child C born … 2011 (“the child”).

The parties jointly make all relevant decisions regarding the major long-term issues in relation to the child except in the case of emergency, and the parties shall consult each other in relation to decisions to be made about major long-term issue and make a genuine effort to come to a joint decision about that issue.

For the purposes of these orders, a major long-term issue includes but is not limited to issues such as:

(a) Education;

(b) Religion;

(d) Extra-curricular activities; and

(e) Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either party.

The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other party about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

In the event that the parties, after consulting with each other, are unable to make a joint decision about a major long-term issue of the child, the parties shall attend with a qualified Family Dispute Resolution Practitioner as agreed between the parties to discuss the matter in dispute in an attempt to reach a common agreement and the parties shall equally meet any costs.

The parties shall each have responsibility for decisions that are not major long-term issues during the time that the child is in their care.

Restraint on relocation

Pursuant to s 68B of the Family Law Act 1975 the mother be restrained from changing the residence of the child from the greater Brisbane area, defined as being a distance of no greater than 25 kilometres from the father’s residence unless with the written consent of the father or order of this Honourable Court.

Parenting arrangements

The child shall live, spend time and communicate with the parties as agreed between them in writing, but failing agreement in accordance with these orders.

Arrangements in circumstances where both parties are living in Brisbane

10.

In the circumstances where both of the parents are living in Brisbane, orders 11 to 27 shall apply.

11.

As and from the date of this order for a period of three months, the child spend time with the father:

(a) In week 1 of a two week cycle:

(i) from 12:00 pm (or after school) Wednesday to 12:00 pm (or before school) Thursday;

(b) In week 2 of a two week cycle:

(i) from 12:00 pm (or after school) Friday to 12:00 pm (or before school) Monday.

12.

After the expiry of the six months referred to in order 11 above, the child spend time with the father:

(a) In week 1 of a two week cycle:

(i) from 12:00 pm (or after school) Wednesday to 12:00 pm (or before school) Thursday;

(b) In week 2 of a two week cycle:

(i) from 12:00 pm (or after school) Thursday until 12:00 pm (or before school) on Monday.

School holidays

13.

Once the child commences attending school, the time that the child spends with each parent during the school term in accordance with the preceding orders be suspended during all school holiday periods.

14.

Except at otherwise provided for in these orders, during each Easter, June/July and September/October school holiday period, the child shall spend one half of each school holiday period with each parent as follows:

(a) In even numbered years, with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period; and

(b) In odd numbered years, with the father for the first half of each school holiday period and with the mother for the second half of each school holiday period.

15.

During the Christmas school holiday period, except as otherwise provided for in these orders, that the child spend on half of this school holiday period with each parent, week about, with the changeovers occurring at 4:00 pm on Sunday, and that the child spend the first week (7 days) with the father and each alternate week thereafter.

16.

For the purposes of organising the care arrangements for the child for the school holiday periods as provided for in these orders, the parties agree that:

(a) School holiday periods are calculated as commencing from the day after the last day of the term, being Saturday morning at 8:00 am concluding at 4:00 pm the day before the next school term commences;

(b) The number of nights in each school holiday period and if there is an uneven number of nights, the father will have the care of the child for the one additional night;

(c) The times that the changeovers are to occur during the school holiday periods apart from the Christmas school holiday period, are as follows:

(i) in a school holiday period where there is an even number of nights at 4:00 pm; and

(ii) in a school holiday period where there is an uneven number of nights at 8:00am on the day following the first half of the school holiday period.

17.

Subject to orders 14 to 16 and 37 to 46, in the event that either parent wishes to travel with the child during the holiday periods, (including the Christmas period) that they are permitted to do so for up to two weeks of the school holidays subject to notice being provided to the other party in writing at least 60 days in advance. The other parent agrees that they shall not unreasonably withhold their consent to any proposal made by the travelling parent.

18.

For the purposes of this order if one parent elects to travel with the child pursuant to order 17 and the period of travel exceeds the time that the child is to spend with that parent in accordance with these orders, then the non-travelling parent shall spend additional or make-up time with the child in either the same and/or the next school holiday period to equalise the excess time spent with the travelling parent.

Special occasions

19.

Notwithstanding any order to the contrary, the child shall spend time with each parent during the Christmas public period, unless otherwise agreed between the parents, as follows:

(a) In odd numbered years, with the father from 12 noon on Christmas Eve until 12 noon on Boxing Day and with the mother from 12 noon on Boxing day until 12 noon on 28 December; and

(b) In even numbered years, with the mother from 12 noon on Christmas Eve until 12 noon on Boxing Day and with the father from 12 noon on Boxing Day until 12 noon on 28 December.

20.

In the event that Father’s Day occurs on a Sunday when the child would otherwise be living with the mother, the child shall return to the father’s care at 8:00 am on Father’s Day and remain in the father’s care until 8:00 am or before school on the following day.

21.

In the event that Father’s Day occurs on a Sunday when the child is already living with the father, the child shall remain in the father’s care until 8:00 am or before school the following day.

22.

In the event that Mother’s Day occurs on a Sunday when the child would otherwise be living with the father, the child shall return to the mother’s care at 8:00 am on Mother’s Day and remain in the mother’s care until 8:00 am or before school on the following day.

23.

In the event that Mother’s Day occurs on a Sunday when the child is already living with the mother, the child shall remain in the mother’s care until 8:00 am or before school on the following day.

24.

Notwithstanding any order to the contrary, the child shall spend time with his parents for his birthday each year as follows:

(a) In even numbered years, with the father from 5:00 pm on the day before the birthday until 9:00 am on the day after the birthday;

(b) In odd numbered years, with the mother from 5:00 pm on the day before the birthday until 9:00 am on the day after the birthday.

25.

In the event that the child is not in the care of a parent on the parent’s birthday, then notwithstanding any order to the contrary, the parent shall have the care of the child on the parent’s birthday:

(a) If it is a school day, from 3:45 pm or after school until 9:00 am or before school the following day or if the following day is not a school day, then until 6:00 pm on the following day; or

(b) If it is not a school day, from 9:00 am until 9:00 am or before school the following day or if the following day is not a school day, then until 6:00 pm on the following day.

Changeovers

26.

Changeovers take place to and from the school or day care in which the child is enrolled at from time to time with the parent who is concluding the time with the child to deliver the child to school or day care and the parent who is commencing the time with the child to collect the child from school or day care.

27.

If the changeover is to occur on a day on which the child is not attending school or day care, unless otherwise provided for in these orders:

(a) Changeover shall occur at the S Shopping Centre at the commencement of the father’s time with the child; and

(b) Changeover shall occur at the L Shopping Centre at the commencement of the mother’s time with the child.

Telephone calls

28.

The mother shall facilitate the child making telephone calls, Skype calls or sending emails to the father at any reasonable time and the father is at liberty to telephone, Skype or email the child at any reasonable time during the period the child is living with the mother.

29.

The father shall facilitate the child making telephone calls, Skype calls or sending emails to the mother at any reasonable time and the mother is at liberty to telephone, Skype or email the child at any reasonable time during the period the child is living with the father.

30.

Both parents encourage the child to communicate with the other parent and provide privacy for the child’s communication.

Specific issues

31.

This order is authority for the day care centre or school that the child attends, to give each parent information about the child’s progress at school and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the child at the requesting parent’s cost and both parties are at liberty to attend any school event such as parent teacher interviews, sports carnivals and productions.

32.

The parties notify each other of any activities that are scheduled for the child or that the child is invited to attend in the time the child will be in the other parent’s care.

33.

This order hereby authorises the General Medical Practitioner or any other health care professional providing services to the child to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the child’s attendance with that professional, including any diagnosis, proposed treatment or prognosis for the child.

34.

The parties shall inform the other immediately of any serious illness, accident or emergency involving the child that occurs whilst the child is in the parties’ respective care and provide the details of the medical practitioner who has treated the child.

35.

In the event of an emergency requiring an urgent decision regarding the child by the parent wit care of the child, should the other parent be uncontactable after all reasonable efforts have been made, the parent with the care of the child shall make the decision and the other parent will be informed as soon as practicably possible.

36.

Each parent inform the other of their residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within 48 hours of any such change.

Overseas travel

37.

The child’s passport shall be held:

(a) By the father if the child is residing in the same country as the father; or

(b) Otherwise by the mother.

38.

Within 10 days of the travelling parent providing the information provided for in paragraph 46 of these orders to the parent who holds the passport, that parent shall release the passport to the travelling parent for the purpose of the international travel.

39.

Within 10 days of the travelling parent returning with the child from the overseas holiday, the travelling parent shall forthwith return the child’s passport to the parent who holds the passport in accordance with order 37.

40.

The parents be at liberty to travel to a Hague Convention Country with the child for the purpose of a holiday when the child is in their care in accordance with these orders.

41.

The parent who desires to travel with the child overseas will provide written notice to the other parent at least 45 days prior to the proposed departure date for travel, subject to paragraph 42 of these orders.

42.

Should a member of either parent’s immediate family become terminally ill or pass away, that parent may travel with the child overseas on an emergency basis notwithstanding that the notice requirements stipulated in order 41 are not complied with, the travelling parent shall immediately advise and consult with the other parent and provide that parent with all of the relevant information set out in these orders with respect to the emergency travel. Consent of the non-travelling parent shall not be unreasonable withheld.

43.

Unless otherwise agreed, if one parent elects to travel to New Zealand during the Christmas school holiday period and the other parent will also be in New Zealand during that period, the Christmas school holiday arrangement as provided for in order 15 of these orders shall apply in New Zealand.

44.

The travel to any overseas destination is subject to the Australian Department of Foreign Affairs and Trade trave advice, and if the travel advice to the particular destination is “advised not to travel” or “reconsider your need to travel” then the parent is not to travel with the child to that particular destination.

45.

The travelling parent undertakes to return the child to the other parent at the conclusion of the overseas travel.

46.

The mother and father each be permitted to travel overseas with the child, subject to orders 38 to 45 and provided that the parent seeking to travel with the child provides to the other parent, no less than 30 days prior to the date of the departure:

(a) An itinerary setting out the travel arrangements for the party and the child, to include details of the intended destination, departure and return date;

(b) A copy of the tickets or other evidence of pre-paid return ticket and return dates; and

Mother’s treating psychiatrist

47.

The mother physically attend upon her treating therapeutic psychiatrist, Dr O at all appointments scheduled by Dr O.

48.

The mother attend upon any other professional as directed by Dr O from time to time.

49.

The mother authorise her psychiatrist, and any other professional recommended by Dr O, to confirm with the father that she is attending appointments and the frequency of the appointments.

Parenting program

50.

The mother shall forthwith enrol, if she has not already done so, in Parenting Orders Program (“POP”) and attend physically to complete that program as soon as possible in accordance with the directions of the program provider.

PROPERTY

51.

Within 30 days from the date of these orders, the de facto parties shall do all acts and things and execute all documents necessary to transfer to the father at the expense of the father, the whole of the mother’s right, title and interest in the property at Suburb L more particularly known as Lot … on RP …, County of …, Parish of …, Title Reference … (“the L property”).

52.

Contemporaneously with the transfer referred to in the preceding order, the father shall do all acts and things and execute all documents necessary to procure the release and discharge of the Westpac Bank mortgage secured over the L property and that the applicant shall refinance into his sole name all amounts presently outstanding in respect of such mortgage and indemnify the mother against repayment of the mortgage in respect of the L property.

53.

Contemporaneously with the transfer of the L property in order 51 the father shall make a cash payment to the mother in the sum of $117,483.59 such that it results in the mother retaining assets, liabilities and financial resources to the value of 60 per cent of the net property pool.

54.

The father is declared to be the sole legal and beneficial owner of the following:

(a) The RAV4 motor vehicle;

(b) The sale proceeds from the Honda … motor vehicle;

(d) All funds standing to the parties’ joint credit in the Westpac Choice account;

(e) Furniture, furnishings and effects in his possession;

(f) Personal effects and jewellery;

(g) Superannuation entitlements with X Superannuation;

(h) All shares, securities and investments in his name.

55.

The mother is declared to be the sole legal and beneficial owner of the following:

(a) The Kia … motor vehicle;

(b) All funds held in bank accounts in her sole name;

(d) Personal effects and jewellery;

(e) Superannuation entitlements with various funds;

(f) All monies retained by her at separation.

56.

Each party shall retain all liabilities in their sole name, including credit card liabilities, as well as expenses, outgoing and liabilities encumbering or related to those items of property to which they are entitled pursuant to these orders and shall indemnify the other party with respect to those liabilities.

57.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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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