Brown and Kaule - [2017] FamCA 434

FAMILY COURT OF AUSTRALIA

BROWN & KAULE

[2017] FamCA 434

FAMILY LAW – CHILDREN – best interests – whether equal time with the parents is in the best interests of the child – where it is not in the best interests of the child to spend equal time with his parents – where order made for the child to live with the father and spend substantial and significant time with the mother – whether the presumption of equal shared responsibility is rebutted in relation to education – where the presumption is not rebutted – order for equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A) 60CC(3), 61B, 61C, 61B, 61DA(1), 61DA(4), 64B(2)(i), 65DAA, 65DAC

Evidence Act 1995 (Cth) s 140

Kaule & Brown [2015] FamCA 480
MRR v GR (2010) 240 CLR 461
Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Brown

RESPONDENT:

Mr Kaule

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

4757

2014

DATE DELIVERED:

22 June 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

25, 26 & 27 October 2016 and 19 & 21 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC and Mr Matta

SOLICITOR FOR THE APPLICANT:

Mitchell Family Law

COUNSEL FOR THE RESPONDENT:

Mr Robinson

SOLICITOR FOR THE RESPONDENT:

Blackwood Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED BY THE COURT THAT

All previous parenting orders in relation to the child B born … 2013 (“the child”) be discharged.
The Father and the Mother have equal shared parental responsibility for the child.

IT IS ORDERED BY CONSENT THAT

The parties be and are hereby restrained from relocating the child's residence from the greater Melbourne Metropolitan Area without the written consent of the parties or court order.

Living arrangements

IT IS ORDERED BY THE COURT THAT

Failing agreement between the parties in writing:

the child live with the father.
Subject to the mother living in Melbourne, the child spend time with the mother as follows:
(a)From the date of these Orders:
(i)each alternate weekend from 9.00am Friday to 5.30pm Sunday; and
(ii)each Wednesday from 5.30pm to 5.30pm Thursday.
(b) Commencing Term 3 in 2017 during the Victorian gazetted school year:
(i)each alternate weekend from 9.00am Friday to the commencement of kindergarten/child care Monday (or 9.00am if the child is not in kindergarten/childcare); and
(ii)each Wednesday from 5.30pm until 5.30pm Thursday.
(c)Commencing Term 2 in 2019 during the Victorian gazetted school year:
(i)in Week One, from 5.30pm Thursday until the commencement of kindergarten/school on Monday (or 9.00am if the child is not in kindergarten/school); and
(ii)in Week Two, from 5.30pm Wednesday until 5.30pm Friday.

Holiday time

(d)From 9.00am on 13 July 2017 until 5.30pm on 17 July 2017.
(e)Commencing Term 3 in 2017:
(i)During the Victorian Gazetted School Term 1, 2 & 3 holiday periods
A.For six nights commencing…

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 Brown and Kaule

Details

AGLC: Brown and Kaule [2017] FamCA 434
Case: [2017] FamCA 434
Decision Date: 22 June 2017

CaseChat Overview and Summary

This matter concerned parenting orders for a child, B, born in 2013. The proceedings were before Thornton J.

The court was required to determine the terms of parenting orders concerning the child's equal shared parental responsibility, living arrangements, time spent with each parent, holiday arrangements, and communication between parents. Further issues included provisions for relocation, unavailability of parents, kindergarten enrolment, handover procedures, overseas and other travel, passport arrangements, and general communication and information sharing between the parties. The court also addressed orders restraining the parties from denigrating each other in the child's presence and discussing the proceedings with the child.

The court made orders by consent and by court order. All previous parenting orders were discharged. The father and mother were granted equal shared parental responsibility. The parties were restrained from relocating the child's residence from the greater Melbourne Metropolitan Area without consent or court order. Detailed provisions were made for the child's living arrangements, including specific schedules for weekdays, weekends, and school holidays, with variations commencing at different terms and years. The orders also stipulated communication protocols, including Skype calls on specific days and during periods of separation, and outlined handover procedures. Extensive provisions were made regarding overseas and other travel, including notice periods, required documentation, and restrictions on travel to certain countries. The court also ordered that each parent be named as an emergency contact on enrolment forms and made orders restraining denigration of the other party or discussion of proceedings in the child's presence.

Orders

Orders of the court

IT IS ORDERED BY THE COURT THAT

All previous parenting orders in relation to the child B born … 2013 (“the child”) be discharged.

The Father and the Mother have equal shared parental responsibility for the child.

IT IS ORDERED BY CONSENT THAT

The parties be and are hereby restrained from relocating the child's residence from the greater Melbourne Metropolitan Area without the written consent of the parties or court order.

Living arrangements

IT IS ORDERED BY THE COURT THAT

Failing agreement between the parties in writing:

the child live with the father.

Subject to the mother living in Melbourne, the child spend time with the mother as follows:

(a) From the date of these Orders:

(i) each alternate weekend from 9.00am Friday to 5.30pm Sunday; and

(ii) each Wednesday from 5.30pm to 5.30pm Thursday.

(b) Commencing Term 3 in 2017 during the Victorian gazetted school year:

(i) each alternate weekend from 9.00am Friday to the commencement of kindergarten/child care Monday (or 9.00am if the child is not in kindergarten/childcare); and

(ii) each Wednesday from 5.30pm until 5.30pm Thursday.

(i) in Week One, from 5.30pm Thursday until the commencement of kindergarten/school on Monday (or 9.00am if the child is not in kindergarten/school); and

(ii) in Week Two, from 5.30pm Wednesday until 5.30pm Friday.

Holiday time

(d) From 9.00am on 13 July 2017 until 5.30pm on 17 July 2017.

(e) Commencing Term 3 in 2017:

(i) During the Victorian Gazetted School Term 1, 2 & 3 holiday periods

A. For six nights commencing from the conclusion of kindergarten/child care (or 5:30pm if the child is not in kindergarten/child care) on the last day of the Victorian gazetted school term until 5.30pm on the sixth day of the holiday period; and

B. For two nights commencing from 5.30pm on the last Friday of the holiday period until 5.30pm on the last Sunday of the holiday period.

(ii) During the Christmas/long summer school holiday periods

A. In 2017:

1. From 5.30pm on 26 December until 5.30pm on 31 December;

2. For six nights commencing from 5.30pm on 8 January and concluding at 5.30pm on 14 January; and

3. For six nights commencing from 5.30pm on 22 January and concluding at 5.30pm on 28 January.

B. In 2018:

1. From 5.30pm on 21 December until 5.30pm on 26 December;

2. For six nights commencing from 5.30pm on 31 December and concluding at 5.30pm on 6 January; and

3. For six nights commencing from 5.30pm on 14 January and concluding at 5.30pm on 20 January.

(f) Commencing Term 1 in 2019:

(i) During the Victorian Gazetted School Term 1, 2 & 3 holiday periods

A. In 2019:

1. For one week commencing at 5.30pm on the middle Friday of each school term holiday period and concluding 7 nights thereafter at 5.30pm; and

B. In 2020:

1. For one week commencing at the conclusion of school on the last day of the school term (or 5:30pm if the child is not in school) and concluding 7 nights thereafter at 5.30pm.

(ii) During the Christmas/long summer school holiday period

A. In 2019:

1. From 5.30pm on 26 December until 5.30pm on 31 December; and

2. For one week commencing at 5.30pm on 7 January and concluding 7 nights thereafter at 5.30pm and continuing on in a week about arrangement thereafter for the remainder of the holiday period SAVE AND EXCEPT THAT any time that the child would otherwise be spending with the mother pursuant to this Order shall conclude at 5.30pm on the last day of the holiday period.

B. In 2020:

1. From 5.30pm on 21 December until 5.30pm on 26 December; and

2. For one week commencing at 5.30pm on 31 December and concluding 7 nights thereafter at 5.30pm and continuing on in a week about arrangement thereafter for the remainder of the holiday period SAVE AND EXCEPT THAT any time that the child would otherwise be spending with the mother pursuant to this Order shall conclude at 5.30pm on the last day of the holiday period.

(g) Commencing Term 1 in 2021:

(i) During the Victorian Gazetted School Term 1, 2 & 3 holiday periods

A. In 2021 and each alternate year thereafter (“odd years”):

1. For the second half of the school term holiday periods, commencing at 5.30pm on the middle day of the holiday period and concluding at 5.30pm on the last day of the holiday period.

B. In 2022 and each alternate year thereafter (“even years”):

1. For the first half of the school term holiday periods, commencing at the conclusion of school on the last day of the school term (or 5.30pm if the child is not in school) and concluding at 5.30pm on the middle day of the holiday period.

(ii) During the Christmas/long summer school holiday period

A. In 2021 and each alternate year thereafter (“odd years”):

1. For the second half of the Christmas/long summer holiday period, with the mother’s time to commence at 5.30pm on the middle day of the holiday period and conclude at 5.30pm on the last day of the holiday period (such holiday period deemed to commence at 5.30pm on 21 December for the purposes of calculating the mother’s time pursuant to this Order).

B. In 2022 and each alternate year thereafter (“even years”):

1. For the first half of the Christmas/long summer holiday period, with the mother’s time to commence at 5.30pm on 21 December and conclude at 5.30pm on the middle day of the holiday period (such holiday period deemed to commence at 5.30pm on 21 December for the purposes of calculating the mother’s time pursuant to this Order).

(h) At all other times as agreed between the mother and father in writing.

Paragraphs 5(a), (b) and (c) hereof shall be suspended for all Victorian Gazetted school term holiday periods and the Christmas/long summer holiday periods and recommence after any school holiday period in the same sequence as if the school holiday period had not taken place.

Unavailability of either parent

IT IS ORDERED BY THE COURT THAT

In the event that either parent is unable or unavailable to personally care for the child for a period in excess of 48 hours, that parent must provide the other parent with at least 3 days' written notice (except in the event of an emergency in which case as much notice as is reasonably practicable must be given) and the other parent will have the first opportunity to care for the child provided that the other parent advises the unavailable parent within 1 day of receiving the notice (or as soon as practicable in the event of an emergency).

Kindergarten arrangements

IT IS ORDERED BY CONSENT THAT

The parties are to do all things necessary to enrol the child at and ensure he attends the VM kindergarten in 2017 and 2018 in the Monday, Wednesday, Friday program.

Communication

IT IS ORDERED BY THE COURT THAT

The parent with whom the child is not spending time will communicate with the child by Skype at 6.00pm for up to 30 minutes on the following days:

(a) Christmas Day;

(b) Easter Sunday;

(d) The birthday of either parent;

(e) Mother's Day if the child is not otherwise spending time with the mother;

(f) Father's Day if the child is not otherwise spending time with the father; and

(g) Each Thursday and Sunday in periods where the child has not spent time with that parent for a period of 6 days.

10.

The parent with whom the child is living or spending time is to initiate the call and both parties to do everything necessary to facilitate the child participating in the call.

Handover

IT IS ORDERED BY CONSENT THAT

11.

For the purposes of handover:

(a) If the child is at child care, kindergarten or school, the party or nominee will collect the child at child care, kindergarten or school;

(b) If the child is not attending child care, kindergarten or school, the Mother or her nominee will collect the child from the Father's home at the start of the time that the child spends with his Mother and the Father or his nominee will collect the child from the Mother's home at the end of the time that the child spends with the Mother;

Overseas and other travel

IT IS ORDERED BY CONSENT THAT

12.

Before a parent takes the child outside of the greater Melbourne metropolitan area, that parent must advise the other parent in writing of:

(a) their intention to do so;

(b) the flight number, date and time of any flights departing from and returning to Melbourne; and

13.

In relation to travel with the child outside the Commonwealth of Australia, the following provisions apply:

(a) Overseas travel will take place during the child's time with the travelling parent pursuant to these orders, unless otherwise agreed by the parties in writing.

(b) The travelling parent provides to the other parent:

(i) no less than 3 calendar months' notice in writing of the travelling parent's intention to take the child out of the Commonwealth of Australia including the country or countries to which the travelling parent intends to take the child and the approximate dates on which it is proposed the child will travel.

(ii) at least 28 days before the proposed departure date, the parent who is taking the child for an overseas holiday shall supply the following information to the other parent:

A. the dates of the proposed holiday;

B. a full itinerary of the trip;

C. flight itineraries; and

D. the address, email address and phone number of the accommodation.

(c) Neither the Mother nor the Father may take the child to any country which is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction without the prior written consent of the other parent.

(d) Except with the prior written consent of the other parent, the child is not to travel to a destination which is subject to one of the following categories of risk travel advices from the Commonwealth Department of Foreign Affairs and Travel:

(i) Reconsider your need to travel; and

(ii) Do not Travel.

14.

In relation to the child’s passport:

(a) The parent who wishes to take the first overseas holiday with the child will be responsible for doing all things necessary to obtain a passport, visas and other documentation required for the child to travel overseas.

(b) The parties will sign all documents and do all things necessary to obtain or renew the child's passport within 7 days of receiving a request from the other party. The costs associated with the renewal of the child's passport will be shared equally by the parties.

(d) Each party will release the child's passport to the other within 7 days of a request being made, subject to the requesting party's compliance with this paragraph.

IT IS ORDERED BY THE COURT THAT

(e) The father will hold the child’s passport except during periods that the mother travels with the child overseas in accordance with these orders.

(f) The father is to provide the mother with a certified copy of the child’s passport within 14 days of a written request by the mother.

IT IS ORDERED BY CONSENT THAT

15.

With the consent of both parents, the child may participate in group overseas trips organised by educational, sporting or cultural institutions, for example, school, scouts, choirs and the like.

Other matters

IT IS ORDERED BY CONSENT THAT

16.

Each party will keep the other informed as to his or her residential address, mobile telephone number and email address and advise the other party of any change to those details within 24 hours of such change.

17.

Each party is at liberty to request from the Principal of any school, child care or kindergarten attended by the child, copies of any day care/school reports, newsletters, events notices and school photographs at his or her respective cost.

18.

Each party is at liberty to attend all school/day care events, concerts, parent/teacher interviews, sporting and extracurricular competitions and events and any other school function ordinarily attended by parents.

19.

Each party shall advise the other as soon as practicable of any serious injury or significant health concern for emergency medical or dental treatment concerning the child whilst the child is in that party's care.

IT IS ORDERED BY THE COURT THAT

20.

Each parent must be named with contact details on any kindergarten/school enrolment form providing that they are the emergency contacts.

IT IS ORDERED BY CONSENT THAT

21.

The Father and Mother be and are hereby restrained by themselves, their servants and /or agents from:

(a) denigrating, criticising and/or otherwise demeaning the other party or any other member of that party's family in the sight and/or hearing and/or the presence of the child; and

(b) discussing these proceedings with or in the presence or hearing of the child.

22.

Each party is at liberty to provide the kindergarten, child care facility or school attended by the child from time to time with a copy of those orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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