Buckingham and Simm - [2017] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUCKINGHAM & SIMM

[2017] FCCA 1077

Catchwords:
FAMILY LAW – Parenting – relocation – impact of mother’s mental health on the children – whether the children should live on a week about basis with each parent – which parent should have parental responsibility for the children.

Legislation:

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

Child Support (Assessment) Act 1989, s.117

Cases cited:
Collu & Rinaldo [2010] FamCAFC 53
AMS v AIF [1999] HCA 26
U v U [2002] HCA 36
Cowley and Mendoza [2010] FamCA 597
Lennon & Lennon [2011]FamCA 571
Taylor & Barker [2007] FamCA 1246
Heath & Hemming (No.2) [2011] FamCA 749

Applicant:

MS BUCKINGHAM

Respondent:

MR SIMM

File Number:

MLC 2678 of 2014

Judgment of:

Judge Williams

Hearing dates:

28 February 2017 – 3 March 2017

Date of Last Submission:

14 March 2017

Delivered at:

Melbourne

Delivered on:

24 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Hutchings

Solicitors for the Applicant:

Armstrong Legal

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Palmer, Stevens & Rennick

ORDERS

All previous parenting orders for the children X (“X.”) born (omitted) 2004 and Y (“Y”) born (omitted) 2008 (“the children”) be discharged.
The parents have equal shared parental responsibility for the children.
The children live with each parent:

During school term:

a)on a week about basis from the conclusion of school each alternate Monday until the commencement of school the following Monday commencing the first Monday of Term 3 2017

During school term holidays:

b)the one half of the school term holidays at times agreed between the parties, and in default of agreement first half being from the conclusion of school Friday until 5 PM on the middle Saturday

During the Christmas school holidays: (subject to Christmas Day arrangements)

c)In 2017/2018 and each alternate year thereafter, with the mother from the conclusion of school for a period of two weeks and with the father for the following two weeks
d)In 2018/2019 and each alternate year thereafter, with the father from the conclusion of school for a period of two weeks and with the mother for the following two weeks
e)with each parent, for one half of the balance of the Christmas holidays as follows :
(i)for the first half with the mother in 2017/2018 and each alternate year there after
(ii)for the first half, with the father in 2018/2019 and each alternate year thereafter

Christmas day arrangements:
f)with the father from 3 PM Christmas Eve to 5 PM on Christmas Day in 2018 and each alternate year thereafter, and from 5 PM Christmas Day to 5 PM on 26 December 2017 and each alternate year thereafter
g)with the mother from 5 PM on Christmas Day to 5 PM 26 December in 2017 and in each alternate year thereafter, and from 3 PM Christmas Eve to 5 PM Christmas Day 2017 and each alternate year thereafter

Father’s Day and Mother’s day

h)with the father, from 5 PM on the Saturday…

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 Buckingham and Simm

Details

AGLC: Buckingham and Simm [2017] FCCA 1077
Case: [2017] FCCA 1077
Decision Date: 24 May 2017

CaseChat Overview and Summary

This matter concerned parenting orders for two children, X and Y, born in 2004 and 2008 respectively. The dispute between the parents, Buckingham and Simm, was brought before Judge Williams.

The court was required to determine the arrangements for the children's living situation, parental responsibility, education, and medical care. Specific issues included the division of time between parents during school terms and holidays, arrangements for birthdays and Christmas, and the children's schooling and psychological support. The court also had to consider communication protocols between the parents and restrictions on their conduct towards each other in the children's presence.

Judge Williams discharged all previous parenting orders and established equal shared parental responsibility. The orders detailed a complex week-about living arrangement during school terms, with specific provisions for school holidays, including Christmas. The court mandated that X attend a particular school for secondary education and Y attend a specific primary and then secondary school. Crucially, the parents were ordered to facilitate counselling and education for the children regarding the mother's psychiatric condition, with costs shared equally. The court also outlined arrangements for the children's general practitioner, communication between parents, exchange of school-related items, and restrictions on denigrating the other parent or discussing proceedings with the children. Furthermore, the court ordered that the children's passports be obtained and lodged with the court. Finally, the father was ordered to pay half of the children's school fees, uniforms, excursions, and textbooks.

Orders

Orders of the court

All previous parenting orders for the children X (“X.”) born (omitted) 2004 and Y (“Y”) born (omitted) 2008 (“the children”) be discharged.

The parents have equal shared parental responsibility for the children.

The children live with each parent:

During school term:

a) on a week about basis from the conclusion of school each alternate Monday until the commencement of school the following Monday commencing the first Monday of Term 3 2017

During school term holidays:

b) the one half of the school term holidays at times agreed between the parties, and in default of agreement first half being from the conclusion of school Friday until 5 PM on the middle Saturday

During the Christmas school holidays: (subject to Christmas Day arrangements)

c) In 2017/2018 and each alternate year thereafter, with the mother from the conclusion of school for a period of two weeks and with the father for the following two weeks

d) In 2018/2019 and each alternate year thereafter, with the father from the conclusion of school for a period of two weeks and with the mother for the following two weeks

e) with each parent, for one half of the balance of the Christmas holidays as follows :

(i) for the first half with the mother in 2017/2018 and each alternate year there after

(ii) for the first half, with the father in 2018/2019 and each alternate year thereafter

Christmas day arrangements:

f) with the father from 3 PM Christmas Eve to 5 PM on Christmas Day in 2018 and each alternate year thereafter, and from 5 PM Christmas Day to 5 PM on 26 December 2017 and each alternate year thereafter

g) with the mother from 5 PM on Christmas Day to 5 PM 26 December in 2017 and in each alternate year thereafter, and from 3 PM Christmas Eve to 5 PM Christmas Day 2017 and each alternate year thereafter

Father’s Day and Mother’s day

h) with the father, from 5 PM on the Saturday preceding Father’s Day until the commencement of school Monday

i) with the mother, from 5 PM on the Saturday preceding Mother’s Day until the commencement of school Monday

Children’s and parent’s birthdays

j) with the parent who is not otherwise caring for the children on the children’s and parent’s birthdays as follows:

(iii) on a school day from the conclusion of school until 7 PM

(iv) on a nonschool day from 10 AM until 2 PM

Other times as agreed

k) at such other times as agreed between the parties

The children’s live with arrangements pursuant to paragraph 3(a) hereof be suspended during school term and Christmas holidays and resume as if the holidays had not occurred.

X attend (omitted) School in (omitted) for her secondary schooling.

Y attend (omitted) primary school in (omitted) for the completion of her primary schooling, and (omitted) School in (omitted) for her secondary schooling.

The parents forthwith do all acts and things and sign all documents required for the children to attend Dr R psychiatrist, or such other suitably qualified child psychiatrist as may be agreed between the parties, for counselling and education about the mother’s psychiatric condition, and the cost of same are to be shared equally by the parties.

In order to facilitate the children’s counselling and education pursuant to paragraph 6 hereof, Dr R, or such other psychiatrist as agreed by the parties be provided with a copy of the following documents filed in this proceeding:

l) family report of Mr T;

m) report of Dr F;

n) report of Dr D;

o) these reasons for judgment;

p) such further or other documents filed in the proceedings as Dr R, or such other agreed psychiatrist, may request.

Both parents utilise the services of Dr L, or such other general practitioner as may be agreed, for the children, save and except in the case of an emergency.

10.

All non-school changeovers occur with the mother delivering the children to the father’s residence at the commencement of time and the father delivering the children to the mother’s residence at the conclusion of time.

11.

Each parent is at liberty to obtain from the children’s schools all notices, letters, school reports and invitations and to attend parent teacher interviews or activities to which parents are invited.

12.

Each parent notify the other as soon as practicable of any medical emergency involving the children or either of them, or if the children require specialist medical treatment or hospitalisation whilst the children are in their respective care.

13.

Each parent facilitate the children or either of them, communicating by face time, telephone, or other electronic means, with the other parent, in accordance with the children’s wishes, and additionally at 6 PM, each Monday and Thursday during any school holiday time with the other parent.

14.

Each parent ensure the children’s school uniforms, sporting uniforms and any notice from the school are exchanged between parents and/ or returned with the children.

15.

The parties communication we with each other be limited to arrangements for the welfare of the children and implementation of these orders.

16.

Each party be and is hereby restrained from:

(i) denigrating the other party in the presence of or hearing of the children or allowing any other person to do so

(ii) discussing the proceedings with the children or either of them

17.

The parties forthwith do all acts and sign all documents necessary to ensure:

(i) the children have a current Australian passport.

(ii) immediately upon issue of the children’s passports, the passports are lodged with the Melbourne registry of the court, subject to release by written consent of both parties or court order

18.

Pursuant to s117 (2) of the Child-Support (Assessment) Act 1989, in addition to any periodic assessment of child support, the father pay one half of the following expenses:

(i) the children’s school fees at (omitted) primary school and (omitted) School, or such other mutually agreed school, until the conclusion of their secondary education

(ii) the children’s uniforms, excursions and textbooks.

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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