Cloakes and Heinz and Anor - [2019] FCCA 11

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLOAKES & HEINZ & ANOR

[2019] FCCA 11

Catchwords:
FAMILY LAW – Parenting – dispute between Mother, Father and Paternal Grandmother – risk of harm considerations arising out of violence and drug use – whether child should live with Mother in Brisbane – Orders in best interests of child.

Legislation:

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

Cases cited:

MRR v GR [2010] HCA 4

Sayer&Radcliffe [2012] FamCAFC 209

Applicant:

MS CLOAKES

First Respondent:

MS HEINZ

Second Respondent:

MR CLOAKES

File Number:

WOC 231 of 2017

Judgment of:

Judge Altobelli

Hearing dates:

5-6 November 2018

Date of Last Submission:

6 November 2018

Delivered at:

Wollongong

Delivered on:

15 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Gould

Solicitors for the Applicant:

Johnson Horsley Lawyers

Counsel for the First Respondent:

Mr Steward

Solicitors for the First Respondent:

Dawson Lawyers

Counsel for the Second Respondent:

Mr Reeves

Solicitors for the Second Respondent:

Williamson Isabella Lawyers

Counsel for the Independent Children's Lawyer:

Mr Ford

Solicitors for the Independent Children's Lawyer:

Acorn Lawyers

ORDERS

Within 7 days of the date of these Orders, the Mother and Paternal Grandmother do all things necessary to enable the Child to transition into the Mother’s care.
The Child live with the Mother.
Subject to the provisions regarding consultation and communication in Order 4 below, the Mother have sole parental responsibility for the Child [X], born …2013, except in relation to the following:
(a)Any decision to change the Child’s name; and
(b)Any decision to change the Child’s residence that would result in the Child residing geographically further away from the Region 1 than he is currently residing.
The Mother communicate and consult with the Father and the Paternal Grandmother as early as possible prior to making any long-term decisions regarding the Child, and for the purpose of consultation with the Father, communication in writing or by text message is sufficient.
Notwithstanding the provisions of Order 3 above:
(a)The Mother shall be responsible for the daily care, welfare and development of the Child while he is living with her; and
(b)The Paternal Grandmother shall be responsible for the daily care, welfare and development of the Child while he is spending time with her and the Father.
The Child spend time with the Paternal Grandmother and the Father as follows:
(a)From 9:00am until 4:00pm on one Sunday each calendar month, as agreed between the Mother and the Paternal Grandmother;
(b)Commencing from the term 1 school holiday period in 2019, for one half of each school holiday period, with such time to take place in the first half in odd-numbered years and the second half in even-numbered years;
(c)If Easter does not fall during the school holidays, from the conclusion of school on Easter Thursday until 3:00pm on Easter Monday in 2020, and each alternate year thereafter; and
(d)At such other times as agreed between the parties in writing.
The Paternal Grandmother be present to supervise the Child’s time with the Father…

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 11
Decision Date: 15 January 2019

CaseChat Overview and Summary

This matter concerned a parenting dispute before Judge Altobelli, involving the Mother, the Father, and the Paternal Grandmother, regarding the care of the Child. The central issue was the risk of harm to the Child arising from concerns about violence and drug use, and whether the Child should live with the Mother in Brisbane.

The court was required to determine the best interests of the Child, specifically addressing the risks posed by the parents' conduct and the appropriate living arrangements and time spent with each party. This involved considering the impact of violence and drug use on the Child's welfare and safety, and how to balance the Child's need for stability with maintaining relationships with both parents and the paternal grandmother.

In reaching its decision, the court applied the paramount consideration of the Child's best interests under the *Family Law Act 1975* (Cth). The court made orders for the Child to live with the Mother, granting her sole parental responsibility except for decisions regarding the Child's name and any change of residence that would move the Child further from a specified region. The Mother was restrained from consuming drugs or illicit substances in the Child's presence or being affected by them while the Child was in her care, and similarly, the Father was restrained from consuming alcohol, drugs, or illicit substances in the Child's presence or being affected by them while the Child was in his care. The Paternal Grandmother was to be present to supervise the Child's time with the Father, and specific arrangements were made for communication and travel between Brisbane and Sydney.

Orders

Orders of the court

Within 7 days of the date of these Orders, the Mother and Paternal Grandmother do all things necessary to enable the Child to transition into the Mother’s care.

The Child live with the Mother.

Subject to the provisions regarding consultation and communication in Order 4 below, the Mother have sole parental responsibility for the Child [X], born …2013, except in relation to the following:

(a) Any decision to change the Child’s name; and

(b) Any decision to change the Child’s residence that would result in the Child residing geographically further away from the Region 1 than he is currently residing.

The Mother communicate and consult with the Father and the Paternal Grandmother as early as possible prior to making any long-term decisions regarding the Child, and for the purpose of consultation with the Father, communication in writing or by text message is sufficient.

Notwithstanding the provisions of Order 3 above:

(a) The Mother shall be responsible for the daily care, welfare and development of the Child while he is living with her; and

(b) The Paternal Grandmother shall be responsible for the daily care, welfare and development of the Child while he is spending time with her and the Father.

The Child spend time with the Paternal Grandmother and the Father as follows:

(a) From 9:00am until 4:00pm on one Sunday each calendar month, as agreed between the Mother and the Paternal Grandmother;

(b) Commencing from the term 1 school holiday period in 2019, for one half of each school holiday period, with such time to take place in the first half in odd-numbered years and the second half in even-numbered years;

(c) If Easter does not fall during the school holidays, from the conclusion of school on Easter Thursday until 3:00pm on Easter Monday in 2020, and each alternate year thereafter; and

(d) At such other times as agreed between the parties in writing.

The Paternal Grandmother be present to supervise the Child’s time with the Father in Order 6 above.

To facilitate the Child spending time with the Paternal Grandmother and the Father in Order 6 above, the following shall apply:

(a) At the commencement of the Child’s time with the Paternal Grandmother and the Father, the parties shall meet at Sydney Airport at the pick-up/drop off point and the Mother be responsible for delivering the Child to Sydney Airport;

(b) At the conclusion of the Child’s time with the Paternal Grandmother and the Father, the parties shall meet at Brisbane Airport at the pick-up/drop off point and the Paternal Grandmother be responsible for delivering the Child to the Mother at Brisbane Airport;

(c) The parties shall ensure they or another agreed person personally accompany the Child on all flights to and from Sydney Airport until such age as the Child is allowed to travel as an unaccompanied minor in accordance with the relevant airline’s rules of travel.

(d) Each party will provide to the other a copy of the travel itinerary not less than 14 days prior to the commencement of the other’s time.

The Mother take all reasonable steps to ensure the Child communicates with the Father by way of Facetime or telephone calls on the occasions the Child is not spending time with the Paternal Grandmother and Father as follows:

(a) Each Wednesday at 6:00pm;

(b) On the Child’s birthday between 5:00pm and 6:00pm;

10.

The Mother take all reasonable steps to ensure the Child communicates with the Paternal Grandmother by way of Facetime or telephone calls on the Child is not spending time with the Paternal Grandmother and Father as follows:

(a) Each Monday and Wednesday at 8:00am;

(b) Each Saturday at 9:00am;

(d) At such other times as agreed between the Mother and the Paternal Grandmother;

with such calls to be initiated by the Paternal Grandmother.

11.

The Mother be restrained from consuming drugs or any illicit substances in the presence of the Child or be in any way effected by them whilst the Child is in the Mother’s care or control.

12.

The Father be restrained from consuming alcohol, drugs or any illicit substances in the presence of the Child or be in any way effected by them whilst the Child is in the Father’s care or control.

13.

In the event of Childhood illness or emergency, the party with whom the Child is with, contact the other parent forthwith to inform them.

14.

The Mother, Father and Paternal Grandmother shall keep the other party informed at all times of their residential address and contact telephone number and inform the other party within 2 days of any change.

15.

For the purpose of these Orders, communication by writing includes text messages.

16.

The Paternal Grandmother and the Father be restrained from leaving the Child unsupervised with the paternal uncle, Mr A.

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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