Canvil and Merle and Ors - [2019] FamCA 684

FAMILY COURT OF AUSTRALIA

CANVIL & MERLE AND ORS

[2019] FamCA 684

FAMILY LAW – CHILDREN – Best interests – where an order is made for the children, aged 13 and 9, to live with the mother and spend time with the father – where an order that the children spend unsupervised time, increasing over time with the father – where the mother have sole parental responsibility of the children, other than changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.

Family Law Act 1975 (Cth)
Australian Passports Act 2005 (Cth)

Banks v Banks (2015) FLC 93-637

Vigano v Desmond (2012) FLC 93-509

APPLICANT:

Ms Canvil

1st RESPONDENT:

Mr Merle

2nd RESPONDENT:

Mr E Canvil and Mrs G Canvil by her Case Guardian Mr E Canvil

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4803

2012

DATE DELIVERED:

25 January 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 February 2016;
1, 2 & 3 March 2016;
18 April 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE 1ST RESPONDENT:

Mr Hackett

SOLICITOR FOR THE 1ST RESPONDENT:

Evans & Company Family Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Blackah (on 18 April 2016 only)

SOLICITOR FOR THE 2ND RESPONDENT:

Calabrese Lawyers (on 18 April 2016 only)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Black

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous parenting orders are discharged.
The children L, born … 2006 and F, born … 2009, live with the mother.
The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the children, other than changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.
Before making a decision about any such issue, the mother shall:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision made with respect to that issue as soon as practicable thereafter.
The parents shall have equal shared parental responsibility in relation to changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the children when they are in that parent’s care.
Unless otherwise agreed by the parents in writing, the children shall…

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] FamCA 684
Decision Date: 25 January 2019

CaseChat Overview and Summary

The case involved a dispute between Canvil and Merle concerning parenting orders for their children, L and F. The matter came before Hogan J of the Family Court of Australia.

The court was required to determine the living arrangements for the children, the allocation of parental responsibility for long-term decisions, and the specific time the children would spend with each parent. Additionally, the court needed to address issues of communication between parents, the children's welfare and development, and the process for international travel.

Hogan J discharged all previous parenting orders and made new final orders. The children were ordered to live with the mother, who was granted sole parental responsibility for major long-term issues, with specific procedural requirements for consulting the father before making such decisions. Equal shared parental responsibility was ordered regarding changes to living arrangements that would make it significantly more difficult for the children to spend time with the father. Detailed provisions were made for the children's time with the father, including specific arrangements for school terms, school holidays, birthdays, and Christmas. The court also established protocols for communication between parents and children, information sharing regarding the children's health and education, and procedures for international travel. The Independent Children's Lawyer was discharged, and outstanding parenting applications were dismissed. The parties were given leave to make submissions regarding costs.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous parenting orders are discharged.

The children L, born … 2006 and F, born … 2009, live with the mother.

The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the children, other than changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.

Before making a decision about any such issue, the mother shall:

(a) inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

(b) allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

(d) inform the father of the final decision made with respect to that issue as soon as practicable thereafter.

The parents shall have equal shared parental responsibility in relation to changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the father.

Each parent has responsibility for daily decisions about the day to day care, welfare and development of the children when they are in that parent’s care.

Unless otherwise agreed by the parents in writing, the children shall spend time with the father as follows:

(a) during school terms: on Monday from after school until 6.30 pm, with L to spend time with his father each alternate Monday and F to spend time with her father each alternate Monday (such that each child spends each alternate Monday alone with their father), with the father to collect the child with whom he is spending time from school at the commencement of time and the mother to collect the child from the father’s residence at the conclusion of time; and

(b) from Saturday 2 February 2019 until Friday 29 March 2019: each alternate weekend, from 3.30 pm Saturday until 5.00 pm Sunday, with changeovers to occur at J Group Supervision or, if it is unavailable, such other place as is agreed between the parents in writing or, failing agreement about this, at McDonald’s Restaurant, Suburb K; and thereafter

(c) from Saturday 30 March 2019 until Friday 3 May 2019: each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday, with changeovers to occur at a place that is agreed between the parents in writing or, failing agreement about this, at McDonald’s Restaurant, Suburb K; and thereafter

(d) commencing on Friday 3 May 2019: each alternate weekend from after school Friday to 5.00 pm Sunday, with the father to collect the children from school at the commencement of their time and changeover at the conclusion of time to occur at a place that is agreed between the parents in writing or, failing agreement about this, at McDonald’s Restaurant, Suburb K; and

(e) during the school holidays at the end of Term 2 in 2019: for three consecutive nights, being from 9.00 am on the first Saturday after school finishes for the Term until 5.00 pm on the next Tuesday; and

(f) during the school holidays at the end of Term 3 in 2019: for five consecutive nights, being from 9.00 am on the first Saturday after school finishes for the Term until 5.00 pm on the next Thursday; and

(g) during the school holidays at the end of Term 4 in 2019:

(i) from 9.00 am Saturday on the second Saturday after school finishes for the Term until 5.00 pm on the third Saturday of the school holiday period (where the Saturday after school ends for the Term is the first Saturday); and

(ii) from 9.00am on the fourth Saturday after school finishes for the Term until 5.00 pm on the fifth Saturday of the school holiday period (where the Saturday after school ends for the Term is the first Saturday);

(iii) from 9.00am on the sixth Saturday after school finishes for the Term (where the Saturday day after school ends for the Term is the first Saturday) until 5.00 pm on the following Saturday.

(h) commencing with the school holidays at the end of Term 1 in 2020: for the first half of each school holiday period at the end of Terms 1, 2 and 3 in even numbered years and for the second half of each school holiday period at the end of Terms 1, 2 and 3 in odd numbered years, with this time to occur as follows:

(i) when the time occurs during the first half of the school holiday period: from 9.00 am Saturday on the day after school finishes for the Term until 5.00 pm on the next Saturday of the school holiday period (where the Saturday after school ends for the Term is the first Saturday); and

(ii) when the time occurs during the second half of the school holiday period: from 9.00 am Saturday on the second Saturday of the school holiday period (where the Saturday after school ends for the Term is the first Saturday) until 5.00 pm on the Saturday before school recommences.

(i) commencing with the school holidays at the end of Term 4 in 2020: for the first half of the school holiday period at the end of Term 4 in even numbered years and for the second half of the school holiday period at the end of Term 4 in odd numbered years, with this time to occur as follows:

(i) when the time occurs during the first half of the school holiday period: from 9.00 am Saturday (being the day after school finishes for the Term) until 5.00 pm on the fourth Saturday of the school holiday period if the holiday period is of six week’s duration or on the fifth Saturday if the holiday period is of eight weeks’ duration (where the Saturday immediately after school ends for the Term is the first Saturday); and

(ii) when the time occurs during the second half of the school holiday period: from 9.00 am Saturday on the fourth Saturday of the school holiday period if the holiday period is of six week’s duration or on the fifth Saturday if the holiday period is of eight weeks’ duration until 5.00 pm on the Saturday before school recommences for the year (where the Saturday immediately after school ends for the Term is the first Saturday).

(j) from 4.00 pm on Christmas Eve to 12.00 pm on Christmas Day in even numbered years; and

(k) from 12.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years; and

(l) on each of the children’s birthdays (if the children are in the mother’s care on those days):

(i) from 12.00 pm to 4.00 pm if the day falls on a weekend; or

(ii) from 3.00pm or after school until 8.00 pm if the day falls on a week day.

(m) on his birthday (if the children are in the mother’s care on that day):

(i) from 12.00 pm to 4.00 pm if the day falls on a weekend; or

(ii) from 3.00 pm or after school until 8.00 pm if the day falls on a week day.

In the event that the time the children will spend with the father pursuant to Clause (7)(d) above does not fall on the weekend on which Father’s Day occurs, the children will spend time with the father from after school or 3.00 pm on the Friday immediately before Father’s Day until 5.00pm on Father’s Day, with the father to collect the children from school at the start of this time and changeover at the conclusion of time to occur at a public place that is agreed between the parents in writing or, failing agreement about this, at McDonald’s Restaurant Suburb K.

The operation of Clauses (7)(a), (7)(c) and (7)(d) shall be suspended during all school holiday periods commencing with the holidays at the end of Term 2 in 2019 and the time provided for in the applicable Clause shall recommence as follows:

(a) when the children have spent the first half of the school holiday period with the father – on the first weekend after school starts for the Term; and

(b) when the children have spent the second half of the school holiday period with the father – on the second weekend after school starts for the Term.

10.

The operation of Clause (7)(d) is suspended for the weekend on which Mother’s Day occurs, such that the children will remain in the mother’s care for that weekend.

11.

The children shall spend time with the mother:

(a) from 4.00 pm on Christmas Eve to 12.00 pm on Christmas Day in odd numbered years; and

(b) from 12.00 pm on Christmas Day to 4.00 pm on Boxing Day in even numbered years; and

(i) from 12.00 pm to 4.00 pm if the day falls on a weekend; or

(ii) from 3.00 pm or after school until 8.00 pm if the day falls on a week day.

(d) on her birthday (if the children are in the father’s care on that day):

(i) from 12.00 pm to 4.00 pm if the day falls on a weekend; or

(ii) from 3.00 pm or after school until 8.00 pm if the day falls on a week day.

12.

Each parent shall communicate with the children, when they are not in their care, by telephone or Skype at all reasonable times and not less than each Wednesday between 6.30 pm and 7.30 pm and, in order to facilitate this:

(a) the parent with whom the children are not spending time shall initiate the telephone or Skype call; and

(b) the parent in whose care the children are at that time shall make the children available to receive the telephone or Skype call; and

(c) the parent in whose care the children are at that time shall arrange for the children to telephone the calling parent on the following night if, for any unforeseen circumstance, the children miss the telephone or Skype call from that parent; and

(d) each parent shall ensure that the children have privacy during the communication

13.

The children shall be at liberty to call either parent at all reasonable times and the parent with whom they are at the time shall assist them to make any calls they reasonably request.

14.

Unless otherwise specified in this Order or agreed between the parents in writing, changeover on a school day shall occur from school and, otherwise, changeovers shall occur at McDonald’s Restaurant, Suburb K

15.

Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.

16.

Neither parent shall enrol the children in any activity which occurs during time they are living or spending time with the other parent, without first obtaining the written consent of that parent.

17.

Each parent shall ensure that each child attends at any extra-curricular activity in which that child is currently enrolled.

18.

Each parent shall comply with the reasonable treatment recommendations of Dr R regarding the treatment of the children’s ADHD and otherwise follow all reasonable recommendations made by any of the children’s treating medical practitioners or allied health professionals.

19.

During any time that the children are in the care of either parent, that parent shall ensure that each child takes all medication that has been prescribed for that child.

20.

Neither parent shall denigrate or insult the other, or their family to, or in front of, or within the hearing of, the children and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.

21.

During the time the children are with either parent, that parent shall respect the privacy of the other parent and not question the children about the personal life of the other parent.

22.

Each parent keep the other informed of the details of the children’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the children.

23.

Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to release medical information about any medical emergency, significant health issue or significant illness suffered by the children to both parents.

24.

Each parent keep the other informed of the details of any school, educational facility or extra-curricular activity provider at which the children attend and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.

25.

If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.

26.

Each parent shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the children attend.

27.

Subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

28.

Each parent keep the other parent informed at all times of their residential address, contact telephone number and an email address and:

(a) notify the other as to any change in those details as soon as practicable after such change; and

(b) notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.

29.

Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.

30.

Each parent is permitted to remove the children from the Commonwealth of Australia for the purpose of holiday travel and the children L, born … 2006 and F, born … 2009, are permitted to leave the Commonwealth of Australia for their purpose of international holiday travel with either of their parents as provided for in this Order and, in order to facilitate such travel, both children are permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).

31.

In the event that a parent wishes to remove the children from the Commonwealth of Australia pursuant to Clause (30), that parent shall provide the other with no less than sixty (60) days’ notice of the intention to travel overseas and shall provide details of the destination and proposed departure and arrival dates.

32.

No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other:

(a) a copy of a return ticket for the children, evidencing the date of departure and date of return to the Commonwealth of Australia; and

(b) a copy of an itinerary which contains sufficient contact details to enable telephone or Skype communication between the non-travelling parent and the children to occur in the manner provided for in this Order.

33.

The mother is entitled to possession of the children’s passports on the proviso that, in order to facilitate overseas holiday travel notified by the father in accordance with Clause (31) of this Order, she shall provide the same to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.

34.

In the event the father removes the child from the Commonwealth of Australia for the purpose of holiday travel, he shall return the children’s passports to the mother within seven (7) days of the children’s return to the Commonwealth of Australia.

35.

In the event that either parent fails to comply with a request to sign and return any document necessary to put the terms of this Order into effect, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the parent who has declined to comply with such request.

36.

Each parent has liberty to provide a copy of the Order made 25 January 2019 and the Reasons for Judgment delivered 25 January 2019 to the school at which the children attend and also to any therapist upon whom the parents and/or the children attend for the purpose of family therapy or other supportive therapy.

37.

The Independent Children’s Lawyer is discharged.

38.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS FURTHER ORDERED THAT

39.

All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.

AND IT IS FURTHER ORDERED THAT

40.

In the event that any party seeks an order that the other party pay his or her costs:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

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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