CADDELL & TAGGARD - [2020] FCCA 872

FEDERAL CIRCUIT COURT OF AUSTRALIA

CADDELL & TAGGARD

[2020] FCCA 872

Catchwords:
FAMILY LAW – Parenting – child has a good and close relationship with both parents – difficult co-parenting relationship which is not assisted by the Father’s engagement with Father’s Rights Groups and his zealous and obsessive pursuit of increased time with his daughter – Mother suffers anxiety and is supported by the Maternal Grandparents – practitioners are reminded of their duty to the Court – Orders for sole parental responsibility, the child to live with the Mother and spend graduated time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2) and (3)(a) – (m), 65DAA

Cases cited:

AMS v AIF (1999) 199 CLR 160

Collu & Rinaldo [2010] FamCAFC 53

Giannarelli v Wraith (1988) 165 CLR 543

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

Vontek & Vontek [2017] FamCAFC 28

Ceremonial Sitting to welcome the Hon. Chief Justice Anthony Murray Gleeson AC, [1998] HCATrans 230 (19 June 1998)
Law Council of Australia Model Rules of Professional Conduct and Practice 2015
Australian Bar Association, Barristers’ Rule 2015

Applicant:

MR CADDELL

Respondent:

MS TAGGARD

File Number:

CAC 677 of 2018

Judgment of:

Judge WJ Neville

Hearing date:

19 November 2019

Date of Last Submission:

23 December 2019

Delivered at:

Canberra

Delivered on:

21 May 2020

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

Unless otherwise agreed in writing between the parties;
Parental responsibility

The Mother have sole parental responsibility for the child X (born in 2017) ("X").
Prior to making any long-term decision affecting X, the Mother will:
(a)Contact the Father in writing to advise him of the upcoming decision and her preference;
(b)The Father will provide his opinion via the Divvito App (or in writing);
(c)The Mother will give the Father's opinion due consideration and will answer any questions raised by the Father about the proposal;
(d)Where possible, the parties will then reach joint agreement about the decision;
(e)If agreement is not reached within 21 days of the Mother's contact with the Father pursuant to the above Order, the Mother may make the decision; and
(f)The Mother shall advise the Father via the Divvito App (or in writing) of the decision within 48 hours of it being made together with the information about steps taken by her to implement the decision.

Change of X's surname

The name of the child X (born in 2017) is changed to X TAGGARD-CADDELL.
The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.
The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.

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 CADDELL & TAGGARD

Details

AGLC: Caddell and Taggard [2020] FCCA 872
Case: [2020] FCCA 872
Decision Date: 21 May 2020

CaseChat Overview and Summary

In this matter before Judge WJ Neville, the parties were the Mother and the Father, concerning parenting arrangements for their child, X. The dispute arose from a difficult co-parenting relationship, exacerbated by the Father's engagement with Father's Rights Groups and his perceived obsessive pursuit of increased time with X. The Mother experienced anxiety and received support from her maternal grandparents.

The court was required to determine the appropriate orders for parental responsibility, the child's living arrangements, and the extent of time X would spend with each parent. Additionally, the court considered an application to change the child's surname. The court also provided a reminder to practitioners regarding their duty to the court.

The court's reasoning focused on the child's best interests, acknowledging X's good and close relationship with both parents. However, the court found that the Father's conduct and the strained co-parenting dynamic necessitated specific orders. The court ordered that the Mother have sole parental responsibility, with a structured process for the Father to provide input on long-term decisions. X was ordered to live with the Mother, and graduated time with the Father was prescribed, increasing over time. The court also ordered a change of X's surname to Taggard-Caddell.

The final orders included detailed provisions for X's time with the Father, encompassing regular contact, holiday arrangements, and special occasion time, with a progressive increase in the Father's time over several years. The orders also stipulated communication protocols, including the use of the Divvito App, and addressed issues such as medical record access, international travel, and dispute resolution. All extant applications were dismissed, and the matter was finalised.

Orders

Orders of the court

Unless otherwise agreed in writing between the parties;

Parental responsibility

The Mother have sole parental responsibility for the child X (born in 2017) ("X").

Prior to making any long-term decision affecting X, the Mother will:

(a) Contact the Father in writing to advise him of the upcoming decision and her preference;

(b) The Father will provide his opinion via the Divvito App (or in writing);

(c) The Mother will give the Father's opinion due consideration and will answer any questions raised by the Father about the proposal;

(d) Where possible, the parties will then reach joint agreement about the decision;

(e) If agreement is not reached within 21 days of the Mother's contact with the Father pursuant to the above Order, the Mother may make the decision; and

(f) The Mother shall advise the Father via the Divvito App (or in writing) of the decision within 48 hours of it being made together with the information about steps taken by her to implement the decision.

Change of X's surname

The name of the child X (born in 2017) is changed to X TAGGARD-CADDELL.

The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.

The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X CADDELL as X TAGGARD-CADDELL.

Living arrangements

X live with the Mother.

X spend time with her Father in accordance with the following Orders.

From the date of these Orders until 30 June 2020:

From:

(a) 9:30am to 5:00pm each Saturday; and

(b) 9:30am to 4:30pm each Wednesday.

From 1 July 2020 until 31 December 2020:

In Week One, from:

(a) 9:30am to 4:30pm on Wednesday; and

(b) 9:30am on Saturday until 12:00pm on Sunday;

10.

In Week Two, from:

(a) 9:30am to 4:30pm on Wednesday; and

(b) 9:30am to 4:30pm on Friday;

11.

During the Christmas period in 2020 the following shall apply:

(a) The "Christmas period" is defined to commence at 9:30am on 23 December 2020 and conclude at 12noon on 31 December 2020;

(b) During the Christmas period the normal Week One and Week Two time is suspended.

(i) From 9:30am on 23 December until 3:00pm on 24 December; and

(ii) From 9:30am on 30 December until 3:00pm on 31 December;

(d) After the Christmas period has concluded, time will recommence as if it were Week One.

From 1 January 2021 until 31 December 2021:

12.

In Week One, from:

(a) 9:30am to 4:30pm on Wednesday; and

(b) 9:30am on Saturday until 3:00pm on Sunday;

13.

In Week Two, from:

(a) 9:30am to 4:30pm on Wednesday; and

(b) After day care/preschool on Thursday until before day care/preschool on Friday.

14.

During the 2021 Easter period (and the 2022 Easter period if X is not yet at school):

(a) The "Easter period" is defined to commence at 9:30am on Holy Thursday and conclude at 12noon on Easter Monday;

(b) During the Easter period the normal Week One and Week Two time is suspended;

(i) 9:30am on Holy Thursday until 12noon on Good Friday;

(ii) 9:30am on Easter Sunday until 12noon on Easter Monday;

(d) After the Easter period has concluded, time will recommence as if it were Week One.

15.

During the Christmas period in 2021 the following shall apply:

(a) The "Christmas period" is defined to commence at 9:30am on 23 December 2021 and conclude at 3:00pm on 31 December 2021;

(b) During the Christmas period the normal Week One and Week Two time is suspended;

(i) 9:30am on Christmas Eve until 4:00pm on Christmas Day;

(ii) 9:30am on Boxing Day until 3:00pm on 28 December;

(iii) 9:30am on 30 December until 3:00pm on 31 December;

(d) During the Christmas period in 2022 (this Order applies if X is not yet at school) as follows, from:

(i) 9.30am on 23 December until 12:00pm on 24 December;

(ii) 9.30am on 30 December until 3:00pm on 31 December;

(iii) After the Christmas period has concluded, time will recommence as if it were Week One.

From 1 January 2022 until the end of Term 2 in 2022:

16.

During the school term as follows:

(a) In Week One, from after school on Friday until 4:00pm the following Sunday; and

(b) In Week Two from after school on Thursday until before school the following Friday.

17.

During the school holiday periods Order 16 is suspended and the following provisions apply:

(a) In the Terms 1, 2 and 3 school holidays, X will spend a block of three nights with the Father as agreed between the parties and failing agreement from 10:00am on the middle Friday until 3:00pm on the following Monday; and

(b) In the long Christmas/January holiday period, in addition to the special occasion Christmas time provided for below, for three blocks of three consecutive nights (that is, not six or nine nights consecutively) as agreed between the parties and failing agreement, from:

(i) 10:00am on the first Friday following the conclusion of the school term until 3:00pm the following Monday;

(ii) 10:00am on the first Friday in January until 3:00pm the following Monday; and

(iii) 10:00am on the third Friday in January until 3:00pm the following Monday.

18.

From X's first year of school the following shall apply with respect to the Christmas period:

(a) The “Christmas period” is defined as beginning at 12noon on 24 December and ending at 12noon on 26 December each year;

(b) During the Christmas period the normal holiday time is suspended;

(d) In odd-numbered years, X shall spend time with her Father during Christmas period.

19.

From X's first year of school the following shall apply with respect to the Easter period:

(a) The “Easter period” is defined as beginning at 10:00am on Good Friday and ending at 10:00am on Easter Monday;

(b) In even-numbered years, X shall spend time with her Father during the Easter period;

(d) In the event the Easter period falls during the school holidays and X is to spend time with her Father during the Easter period, the Easter period will be included in the time that X is to spend with her father in accordance with Order 19.1 above (and will not be additional to that time);

From the commencement of Term 3 in 2022:

20.

During the school term as follows:

(a) In Week One from after-school on Friday until before school on Monday (or Tuesday, if the Monday is a public holiday); and

(b) In Week Two from after school on Thursday until before school on Friday.

21.

During the school holiday periods Order 20 is suspended and the following provisions apply:

(a) In the Terms 1, 2 and 3 school holidays, in a block of four nights as agreed between the parties and failing agreement from 10:00am on the middle Friday until 3:00pm on the following Tuesday;

(b) In the long Christmas/January holiday period, for three blocks of four nights (that is, not eight or twelve nights consecutively) as agreed between the parties and failing agreement, from:

(i) 10:00am on the first Friday following the conclusion of the school term until 3:00pm the following Tuesday;

(ii) 10:00am on the first Friday in January until 3:00pm the following Tuesday; and

(iii) 10:00am on the third Friday in January until 3:00pm the following Tuesday.

22.

Each year thereafter, X's holiday time with her Father shall increase by one night each year until it reaches a blocks of seven nights, so that:

(a) In Year 3, X's holiday time with her Father is in a five night block (to occur at times as agreed between the parties and failing agreement commencing at 10:00am on the first Saturday of the holiday period);

(b) In Year 4, X's holiday time with her Father is in a six night block (to occur at times as agreed between the parties and failing agreement commencing at 10:00am on the first Saturday of the holiday period);

(i) During school term holiday periods (Terms 1, 2 and 3) X spends equal time with her Father during the holiday periods as agreed between the parties, and failing agreement as follows:

A. In even-numbered years, X will spend the first half of term school holiday periods with the Father;

B. In odd numbered years, X will spend the first half of term school holiday periods with the Mother;

C. The “first half” is defined as commencing from the last day of the school term, and concluding at 5:00pm on the middle Sunday of the holiday period; and

D. The “second half” is defined as commencing from 5:00pm on the middle Sunday of the holiday period, and concluding on the first day of the school term.

(ii) During the long Christmas/January holiday period X spends time with her parents equally as agreed between them, and failing agreement in rotating blocks of seven nights as follows:

A. In even-numbered years, X will spend the first block of nights with her Father;

B. In odd-numbered years, X will spend the first block of nights with her Mother; and

C. The rotating blocks are suspended during the Christmas period.

23.

With respect to the Christmas period:

(a) The “Christmas period” is defined as beginning at 12noon on 24 December and ending at l2noon on 28 December each year;

(b) During the Christmas period the normal holiday time is suspended;

(d) In odd-numbered years, X shall spend time with her Father during the Christmas period.

24.

With respect to the Easter period:

(a) The “Easter period” is defined as beginning at 10:00am on Good Friday until 10:00am on Easter Monday;

(b) In even-numbered years, X shall spend time with her Father during the Easter period.

(d) In the event the Easter period falls during the school holidays, the Easter period will be included in the time that X is to spend with her Father in accordance with Order 22 above (and will not be additional to that time).

Special occasion time:

25.

Notwithstanding the above Orders:

(a) X will spend time with her Father on Father's Day as follows:

(i) In 2020 and 2021, from 4:30pm on the Saturday before Father's Day until 4:30pm Sunday (Father's Day);

(ii) Once X commences primary school, from after school on the Friday before Father's Day until 3:00pm Sunday (Father's Day);

(iii) Once X is in Year 2, from after school on the Friday before Father’s Day until before school the following Monday.

(b) X will spend the Mother's Day weekend with her Mother, and if Mother's Day falls during a weekend that X would otherwise have been spending with her Father that time will be suspended.

(i) If on a weekday, from 3:30pm until 6:00pm; and

(ii) If on a weekend, from 11:00am until 4:30pm.

Changeover:

26.

Where changeover does not occur at X's day-care/school, it shall occur as follows:

(a) The Mother and Father will not come into direct contact at changeover;

(b) The Paternal Grandmother, Ms A, and the Mother will attend Suburb B McDonald’s for changeover (or at another location as agreed between the Mother and Ms A); and

General orders:

27.

Unless in the case of an emergency, the parties continue to communicate via the DIVVITO App for all communication.

28.

The Mother and the Father are permitted to attend any school attended by X and to attend any school event or occasion which parents are invited to.

29.

The parents authorise in writing the school attended by X to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent-teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copies of these Orders will be sufficient to discharge this Order.

30.

The Mother and the Father advise each other as soon as possible by the DIVVITO App (or by telephone call in the event of the emergency situations below) in the event of the following occurring:

(a) X being injured or falling seriously ill;

(b) X requiring urgent medical treatment by a doctor or ambulance crew;

(d) X obtaining an appointment to attend upon a general practitioner.

31.

The Mother and the Father be at liberty to obtain all medical records and to consult with X's medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose and in the event that these Orders are not accepted as authority, both parties will do all things necessary to authorise the obtaining of such information.

32.

The Mother and the Father will not denigrate each other or the other parents' family in X's presence nor allow another person to do so.

33.

The Mother and the Father attend and complete a Circle of Security Course, which are offered at various community health and family health service centres in the ACT (as well as C Family Services).

34.

In the event a dispute arises in relation to the interpretation of these Orders, or any other parenting issue concerning X not covered by these Orders, then pursuant to Section 13C(l)(b) of the Family Law Act 1975, the parties are required to attend· family dispute resolution with a family dispute resolution practitioner to help them resolve their disputes with each other, such Family Dispute Resolution to occur at either Relationships Australia or any other agreed practitioner.

International Travel:

35.

In the event that either parent intends to travel outside of the Commonwealth of Australia for a holiday with X, then such parent (hereinafter referred to as the "travelling parent") must provide to the other parent (hereinafter referred to as the "remaining parent") not less than six (6) weeks from the intended date of departure:

(a) A written notice to the remaining parent which will state that they intend to travel outside of the Commonwealth of Australia with X as provided by these Orders; and

(b) A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the travelling parent and X and the overseas contact telephone, email address and facsimile applicable at that intended address or addresses.

36.

The remaining parent must inform the travelling parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to above whether or not he or she consents to the travelling parents' proposal to travel out of the Commonwealth of Australia with X.

37.

For the purpose of Order 36 above:

(a) Neither parent will unreasonably withhold their consent to the proposed travel; and

(b) Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with X during the international travel.

38.

The travelling parent shall deliver to the remaining parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/sea craft tickets (or written confirmation from the airline or travel agent) for both the travelling parent and X for their departure from and return to the Commonwealth of Australia.

39.

X's passport is to be held by the Mother, and shall be returned to the Mother within 3 days of the Father returning from any international travel with X.

40.

All extant Applications be dismissed, the matter finalised and removed immediately from the docket.

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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