CASSIDY & SIBLY - [2012] FamCA 245

FAMILY COURT OF AUSTRALIA

CASSIDY & SIBLY

[2012] FamCA 245

FAMILY LAW – CHILDREN – final orders – with whom a child lives – application by the father seeking orders that one of the parties’ children live with him in Australia – where the mother sought orders that the child be permitted to relocate to Canada – where the father resides in Australia and the mother and the child’s sibling reside in Canada – where the mother makes allegations of domestic violence against the father – where previous Hague Proceedings resulted in the child returning to Australia – where the Court was satisfied that the child was settled in Australia and a further change to his care arrangements would be detrimental to his welfare – where the mother has permanent residency in Australia but the father does not have a similar right in Canada – best interests – orders that the child live with the father in Australia and spends time with the mother in Australia – further orders that the child be cared for in a week about shared care arrangement if the mother relocates to Australia.

FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the father resides in Australia and the mother in Canada – best interests – where it would not be practical for the parties to have equal shared parental responsibility – orders that the father have sole parental responsibility for the child – further orders that the parties have equal shared parental responsibility should the mother relocate to Australia.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA & 65DAA

Goode and Goode (2006) FLC 93-286
Hannigan & Sorraw [2010] FamCAFC 257
Jones v Dunkel (1959) 101 CLR 298
McCall & Clark (2009) FLC 93-405

LexisNexis Butterworths, Cross on Evidence Australian Edition, Vol 1 (at Service 143) [1215].

APPLICANT:

Mr Cassidy

RESPONDENT:

Ms Sibly

FILE NUMBER:

DNC

570

2010

DATE DELIVERED:

23 April 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

28-30 November 2011 &
1 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Vanessa Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

The father have sole parental responsibility for the child R CASSIDY born on … June 2005.
The child R live with the father in Australia.
The child spend time with the mother in Australia as agreed between the parties and failing agreement:
(a)in even numbered years for all of the mid-year school holidays and the second half of the Christmas school holiday period;
(b)in odd numbered years for all of the mid-year school holidays and for the first half of the Christmas school holiday period;
(c)the father meet fifty per cent of the mother’s reasonable international airfare costs of the most direct route from Ontario, Canada to Darwin in Australia on one occasion per…

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 CASSIDY & SIBLY

Details

AGLC: CASSIDY & SIBLY [2012] FamCA 245
Case: [2012] FamCA 245
Decision Date: 23 April 2012

CaseChat Overview and Summary

This case concerned an application by the father for final orders regarding the living arrangements of the child, R, with the father in Australia. The mother sought orders permitting the child to relocate to Canada, where she and R's sibling resided. The father lived in Australia, and the mother had permanent residency in Australia but no similar right in Canada. The mother had previously taken the child to Canada without the father's permission, leading to Hague Proceedings that resulted in the child's return to Australia. The mother also made allegations of domestic violence against the father.

The court was required to determine the best interests of the child, R, in light of the proposed relocation and the existing family violence allegations. Specifically, the court had to consider whether the presumption of equal shared parental responsibility under section 61DA of the relevant Act had been rebutted, and if so, what form of parental responsibility and living arrangements would best serve the child's welfare. The court also had to assess the practicalities and potential detriment of any change in the child's settled circumstances in Australia.

Dawe J found that the child was settled in Australia and that a further change to his care arrangements would be detrimental to his welfare. The court considered the primary considerations under section 60CC of the Act, including the benefit of a meaningful relationship with both parents and the need to protect the child from harm. Given the geographical distance and the mother's previous actions, the court determined that equal shared parental responsibility was not practical in the immediate future. The court noted the father's strong bond with the child and his capacity to provide care, as well as the child's adaptation to his school and social environment in Darwin.

The court ordered that the father have sole parental responsibility for R and that R live with the father in Australia. The child was to spend time with the mother in Australia, with specific provisions for holidays and communication. The court also made orders for shared care arrangements should the mother relocate to Australia permanently, and for communication between the child and the mother. The mother was restrained from removing the child from Australia without consent or court order until December 2015.

Orders

Orders of the court

The father have sole parental responsibility for the child R CASSIDY born on … June 2005.

The child R live with the father in Australia.

The child spend time with the mother in Australia as agreed between the parties and failing agreement:

(a) in even numbered years for all of the mid-year school holidays and the second half of the Christmas school holiday period;

(b) in odd numbered years for all of the mid-year school holidays and for the first half of the Christmas school holiday period;

(c) the father meet fifty per cent of the mother’s reasonable international airfare costs of the most direct route from Ontario, Canada to Darwin in Australia on one occasion per annum;

From December 2015 the child spend time with the mother as agreed between the parties and failing agreement:

(a) for the entirety of the Australia Christmas School Holidays (December and January) in Australia or Canada on the basis that the mother (or other adult approved by the father) will collect the child from the father in Darwin, Australia and return the child to the father in Darwin, Australia, with the mother meeting the costs of such travel;

(b) for all of the mid-year school holidays in Australia.

The mother provide to the father in writing full particulars of the travel arrangements, detailed itinerary and a copy of the return ticket for the child and accompanying adult not less than twenty-eight [28] days before the proposed date of travel.

The child communicate with the mother by telephone at all reasonable times and not less than three [3] times each week with the mother to initiate the telephone calls and the father to make the child available to receive the calls.

The child communicate with the mother by Skype each Sunday from 8.30 am with the mother to initiate the Skype communication.

The father notify the mother by email or text communication within seven [7] days of all decisions made in relation to the child’s living arrangements, education, health or religion.

The parties inform the other in the event of any serious accident, injury or illness suffered by the child and all and any medical or other treatment for the child.

10.

Each parent be entitled to obtain directly from any school attended by the child, or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.

11.

The parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within fourteen [14] days of any change of either their telephone number or residential address, advise the other parent of that change.

12.

Until 1 December 2015 the mother Ms SIBLY and her servant and/or agents be and are hereby restrained from attempting to remove or causing or permitting the removal of R CASSIDY born … June 2005 from the Commonwealth of Australia without the written consent of the father, or by order of the Court and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List, enforce at all points of arrival or departure by air or by sea in the Commonwealth of Australia and maintain the child R CASSIDY on the Watch List until 1 December 2015.

13.

In the event that the mother returns to reside permanently in Darwin, Australia on or before 1 July 2013 and files and serves an affidavit confirming her intention to reside permanently in Darwin, Australia then thereafter whilst the mother continues to reside permanently in Australia:

(a) the parents shall have equal shared parental responsibility for the child R;

(b) unless otherwise agreed in writing by the father and the mother and except as otherwise provided for special occasions:

(i) during school terms the child R shall live with the father from the conclusion of school on the first Monday in each term until the commencement of school on the following Monday and each alternate week thereafter and shall live with the mother at other alternate week during school terms;

(ii) during school holidays the child R shall live with the father for one half of all school holidays being the first half in odd numbered years and the second half in even numbered years and live with the mother for the first half in even numbered years and the second half in odd numbered years;

(iii) on the special occasions being the father’s birthday, the mother’s birthday, the child R’s birthday and the child K’s birthday as agreed between the mother and father PROVIDED THAT such arrangements ensure that R spend a minimum of four [4] hours with each parent on Christmas Day and birthdays which do not fall on school days and a minimum of two [2] hours with the other parent on birthdays which fall on a school day

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Notwithstanding, the strong views of the father about the mother’s behaviour in moving to Canada with the child R without his permission, I am satisfied that if the mother were to return with the child K to reside in Darwin then most of the difficulties in communication and the impact upon the child of shared arrangements would be overcome. This would not be the case however if the mother continues to reside in Canada with K. Summary and conclusion The father has established that he has a strong bond with the child and is capable of providing him with appropriate care. The child is settled in Darwin, has adapted well to school and his social surroundings in the care of the father. The father is unable to move to live and work in Canada. The mother accepts limited responsibility for the difficulties created for the child when she took the child without the father’s permission to Canada. The mother has the capacity to live and work in Australia. If she were to reside in Australia, the child would have the benefit of an ongoing relationship with both of his parents and his brother. The father’s concern about the child travelling to Canada in the immediate future is not inappropriate considering the mother’s past behaviour and her attitude towards the father during the proceedings. In the immediate future it would be in the child’s best interest for the mother to visit Australia in order to spend time with the child. This would then enable the mother to have time with the child which fitted in with the Australia school terms. In the long term when the parties have settled into the acceptance of the parenting arrangements it would be appropriate for the child to spend time in Canada enjoying the benefits of his mother’s lifestyle, culture and his extended family. The relationship between the child and his younger brother should be encouraged and is significant. The Act requires the Court to consider as a primary consideration maintaining a meaningful relationship with both of the parents. The settled arrangements for the child in Darwin and his ongoing relationship with the father are most significant. For the above reasons the orders are considered to be in the best interests of the child R.

Ratio Decidendi

Legal Principle Established

Section 60CC sets out the matters which the Court must consider when determining the best interests of a child:Primary considerations(2) The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).Additional considerations(3) Additional considerations are: (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; (b)the nature of the relationship of the child with: (i)each of the child's parents; and (ii)other persons (including any grandparent or other relative of the child); (c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i)either of his or her parents; or (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; (f)the capacity of: (i)each of the child's parents; and (ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; (h)if the child is an Aboriginal child or a Torres Strait Islander child: (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii)the likely impact any proposed parenting order under this Part will have on that right; (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (j)any family violence involving the child or a member of the child's family; (k)any family violence order that applies to the child or a member of the child's family, if: (i)the order is a final order; or (ii)the making of the order was contested by a person; (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m)any other fact or circumstance that the court thinks is relevant.(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:(a)has taken, or failed to take, the opportunity:(i)to participate in making decisions about major long-term issues in relation to the child; and(ii)to spend time with the child; and(iii)to communicate with the child; and(b)has facilitated, or failed to facilitate, the other parent:(i)participating in making decisions about major long-term issues in relation to the child; and(ii)spending time with the child; and(iii)communicating with the child; and(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.