Buckner and Deal - [2019] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUCKNER & DEAL

[2019] FCCA 1353

Catchwords:
FAMILY LAW – Parenting – interim hearing – Mother has unilaterally relocated – Father seeks child’s return – Mother will also return in that event – Section 60CC factors – Mother always primary carer of child – not “reasonably practicable” for Mother to return with child – no order for equal shared parenting – responsibility – “reasonable practicability” considered in the context of s.60CC(3m) – best interests – child to remain with Mother in new location and spend regular time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(3), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(ca), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(1), 60CC(3)(m), 61DA, 61DA(3), 65DAA, 65DAA(1), 65DAA(2) and 65DAA(5)

Cases cited:

Goode & Goode (2006) FLC 93-286

Morgan & Miles (2007) FLC 93-343

C & S [1998] FamCA 66
Mazorski & Albright (2007) 37 Fam LR 518
Pawley & Pawley [2017] FamCAFC 136
Godfrey & Sanders [2007] FamCA 102

Applicant:

MR BUCKNER

Respondent:

MS DEAL

File Number:

NCC 322 of 2019

Judgment of:

Judge Betts

Hearing date:

1 March 2019

Date of Last Submission:

1 March 2019

Delivered at:

Newcastle

Delivered on:

15 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Kekeff

Solicitors for the Applicant:

Region E Family Law

Counsel for the Respondent:

Ms Murray

Solicitors for the Respondent:

Bourne Lawyers

ORDERS

The child, [X] born … 2012 (“the child”) live with the Mother in Town A.
The child spend time with the Father as agreed between the parties but failing agreement as follows:
(a)During school term, each alternate weekend from 7.30pm Friday night until 3.00pm Sunday afternoon with handovers to occur at McDonalds Town B;
(b)At any other reasonable time, during the school term if the Father is in the Town A region;
(c)From the end of term 1 school holiday period, from 7.30pm the Friday before commencement of the school holidays until 3.00pm Sunday being the last day of school holidays with handovers to occur at McDonalds Town B;
(d)From the end of term 2 and term 3 school holiday period, from 7.30pm the Friday before the commencement of school holidays until 3.00pm of the second Tuesday with handovers to occur at McDonalds Town B;
(e)For three (3) weeks during the Christmas school holiday period as agreed between the parties, or failing agreement the last three (3) weeks of the Christmas school holiday period commencing and concluding at 3.00pm on Sunday, with handovers to occur at McDonalds Town B.
The parents may communicate by telephone with the child:
(a)In the Father’s case
(i)each Monday, Wednesday and Friday afternoons between 5.00pm and 5.30pm, with the Father to telephone the child during these times.
(ii)on the child’s birthday, on the Father’s birthday, and on the birthdays of [C] (…) and [D] (…).
(b)When the child is spending time with the Father during the Christmas and school holiday periods, the Mother may have telephone communication with the child each Monday, Wednesday and Friday…

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.

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Details

Case: [2019] FCCA 1353
Decision Date: 15 April 2019

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2012, with the proceedings brought before Judge Betts. The dispute revolved around the arrangements for the child's residence, time spent with each parent, communication between parents and the child, and various other aspects of parental responsibility and interaction.

The court was required to determine the specific terms of the parenting orders, including where the child would live, the schedule for the child spending time with the father, and the parameters for communication between the parents and the child. Additionally, the court needed to address provisions regarding the parents' conduct towards each other in the child's presence, the sharing of information about the child's health and education, and the requirement for parents to attend a "Parenting After Separation" course. The court also directed the preparation of a Family Report to assist in its determination of the child's best interests, considering factors under sections 60CC and 65DAA of the *Family Law Act 1975*.

Judge Betts made detailed orders regarding the child's living arrangements, stipulating that the child would live with the mother and outlining a specific schedule for the child to spend time with the father, including alternate weekends and defined periods during school holidays. The orders also established communication protocols, including telephone contact times and the use of email and text for non-urgent and urgent matters, respectively, with an emphasis on civil and child-focused communication. Furthermore, the court imposed restrictions on denigrating the other parent in the child's presence and mandated that each parent keep the other informed of their contact details. The court also ordered the parties and the child to attend an assessment for a Family Report, specifying the matters the family consultant was to consider, and set a date for the release of this report.

The court adjourned the matter for hearing directions and reserved costs.

Orders

Orders of the court

The child, [X] born … 2012 (“the child”) live with the Mother in Town A.

The child spend time with the Father as agreed between the parties but failing agreement as follows:

(a) During school term, each alternate weekend from 7.30pm Friday night until 3.00pm Sunday afternoon with handovers to occur at McDonalds Town B;

(b) At any other reasonable time, during the school term if the Father is in the Town A region;

(c) From the end of term 1 school holiday period, from 7.30pm the Friday before commencement of the school holidays until 3.00pm Sunday being the last day of school holidays with handovers to occur at McDonalds Town B;

(d) From the end of term 2 and term 3 school holiday period, from 7.30pm the Friday before the commencement of school holidays until 3.00pm of the second Tuesday with handovers to occur at McDonalds Town B;

(e) For three (3) weeks during the Christmas school holiday period as agreed between the parties, or failing agreement the last three (3) weeks of the Christmas school holiday period commencing and concluding at 3.00pm on Sunday, with handovers to occur at McDonalds Town B.

The parents may communicate by telephone with the child:

(a) In the Father’s case

(i) each Monday, Wednesday and Friday afternoons between 5.00pm and 5.30pm, with the Father to telephone the child during these times.

(ii) on the child’s birthday, on the Father’s birthday, and on the birthdays of [C] (…) and [D] (…).

(b) When the child is spending time with the Father during the Christmas and school holiday periods, the Mother may have telephone communication with the child each Monday, Wednesday and Friday afternoons between 5.00pm and 5.30pm, with the Mother to telephone the child during these times.

The parties shall communicate by email for non-urgent matters and by text message for urgent matters relating to the child and shall keep their communication civil and child-focused.

Each parent shall keep the other advised at all times of their residential address, email address and telephone numbers and shall advise the other parent in writing within 24 hours of any change in their residential address, email or telephone numbers.

Pursuant to section 68B of the Family Law Act 1975, each of the parties is restrained from:

(a) Denigrating the other party, or members of their family, or discussing these proceedings, in the presence or hearing of the child;

(b) Permitting the children to remain in the presence or hearing of any other person who is denigrating the other party or members of their family;

Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health or education professional and any school attended by the child to provide to each parent (at that parent’s expense) copies of reports and any other information or documentation relevant to the child’s health and education.

Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the child.

Each parent shall enrol in and complete a “Parenting After Separation” course at the earliest available date and provide evidence of enrolment to the other parent’s Solicitor within twenty-one (21) days of the date of these Orders and evidence of completion of the course within seven (7) days of completion.

10.

Each parent shall be at liberty to attend all events and activities at the child’s school to which parents are invited to attend.

11.

Each parent shall be at liberty to attend all sporting, community and cultural activities in which the child is involved.

12.

Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

(a) To consider the factors in S60CC & S65DAA of the Family Law Act 1975.

(b) To assess the parents (and other significant adults).

(d) To assess the children’s developmental and emotional state.

(e) To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.

(f) To assess the proposed and actual home environments.

(g) To assess the proposals of each party as to the children’s future.

(h) To consider any other matter which the family consultant considers relevant to the Court’s determination.

13.

The Court requests the said report be released by 25 October 2019.

14.

Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

15.

If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

16.

The matter is adjourned to 9.30am on 21 November 2019 for Hearing Directions.

17.

The costs of both parties be reserved.

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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