Conlan and Tomlinson - [2017] FamCA 895

FAMILY COURT OF AUSTRALIA

CONLAN & TOMLINSON

[2017] FamCA 895

FAMILY LAW – CHILDREN – Final parenting orders – bests interests – with whom the only child of the relationship lives – where the child currently lives with the mother – where both parties seek that the child lives with them – order made for the child to live with the mother and spend time with the father – parental responsibility – whether the presumption of equal shared parental responsibility applies – where the presumption of equal shared parental responsibility does apply – order made for equal shared parental responsibility – order to discharge watch list order – order permitting the child to travel overseas with either parent.

FAMILY LAW – COSTS – reserved for written submissions.

Family Law Act 1975 (Cth) ss 60B, 60B(2)(c), 61B, 61C, 61DA, 61DA(3), 60CA, 60CC, 64B, 65DAA, 65DAC, 117

Evidence Act 1995 (Cth) s 140

Conlan & Tomlinson [2014] FCCA 3118
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Conlan

RESPONDENT:

Ms Tomlinson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

AYC

2013

DATE DELIVERED:

31 October 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

23, 24, 25 & 27 January and 5 & 8 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr John Longworth

SOLICITOR FOR THE APPLICANT:

Robb & Associates Solicitors Pty Ltd

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Amanda Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED THAT

All previous parenting orders be discharged, including Order 2 of the Orders made by Registrar Lethbridge on 5 December 2016 being a Watch List order.
The parents have equal shared parental responsibility for the child X born … 2010 (“the child”).
The child live with the mother.
The child spend time with the father as agreed in writing between the parties, and failing agreement, as follows:
(a)During the school term:
(i)In week one, from after school Thursday (or 4.00pm Thursday if a non-school day) until the commencement of school the following Monday (or the commencement of school Tuesday if the Monday is a non-school day);
(ii)In week two, from after school Wednesday (or 4.00pm if a non-school day) until the commencement of school Thursday (or 9.00am Thursday if a non-school day); and
(iii)For the purposes of this Order, ‘week one’ shall be the first week in any school term.
Subject to Order (8)(c) and (8)(d) herein, during the school term holidays the child spend time with the mother and father as agreed in writing between the parties, and failing agreement as follows:
(a)In odd numbered years with the father for the first half and the mother for the second half;
(b)In even numbered years with the mother for the first half and the father for the second half;
(c)For the purposes of this Order:
(i)The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm…

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 Conlan and Tomlinson

Details

AGLC: Conlan and Tomlinson [2017] FamCA 895
Case: [2017] FamCA 895
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the matter of *Conlan and Tomlinson*, Thornton J of the Family Court of Australia considered parenting orders concerning the child X. The dispute involved the parents' arrangements for the child's living arrangements, time spent with each parent, and related matters, including overseas travel and communication. Previous parenting orders, including a Watch List order, were discharged.

The court was required to determine the specific terms of new parenting orders, including the allocation of parental responsibility, the child's living arrangements, and a detailed schedule for the child's time with each parent during school terms, school holidays, and long summer holidays. Further issues included provisions for overseas travel by either parent with the child, arrangements for special days such as birthdays and Christmas, communication protocols between parents and with the child, and the handling of the child's passport. The court also addressed the mother's consultation with a psychologist and the discharge of the Independent Children's Lawyer.

Thornton J made orders by consent and otherwise, establishing equal shared parental responsibility and that the child live with the mother. The orders set out a complex, alternating schedule for the child's time with the father during school terms and holidays, with specific provisions for long summer holidays and overseas travel. These provisions included notice periods, itinerary requirements, and restrictions on travel destinations to signatory countries of The Hague Convention. The court also mandated specific communication arrangements between parents and with the child, and outlined procedures for the child's passport. The mother was ordered to consult a psychologist regarding her anxiety, and the court discharged the Independent Children's Lawyer. Costs were reserved pending written submissions.

Orders

Orders of the court

IT IS ORDERED THAT

All previous parenting orders be discharged, including Order 2 of the Orders made by Registrar Lethbridge on 5 December 2016 being a Watch List order.

The parents have equal shared parental responsibility for the child X born … 2010 (“the child”).

The child live with the mother.

The child spend time with the father as agreed in writing between the parties, and failing agreement, as follows:

(a) During the school term:

(i) In week one, from after school Thursday (or 4.00pm Thursday if a non-school day) until the commencement of school the following Monday (or the commencement of school Tuesday if the Monday is a non-school day);

(ii) In week two, from after school Wednesday (or 4.00pm if a non-school day) until the commencement of school Thursday (or 9.00am Thursday if a non-school day); and

(iii) For the purposes of this Order, ‘week one’ shall be the first week in any school term.

Subject to Order (8)(c) and (8)(d) herein, during the school term holidays the child spend time with the mother and father as agreed in writing between the parties, and failing agreement as follows:

(a) In odd numbered years with the father for the first half and the mother for the second half;

(b) In even numbered years with the mother for the first half and the father for the second half;

(i) The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and

(ii) The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term

During the long summer holidays the child spend time with the mother and father as agreed in writing between the parties, and failing agreement as follows:

(a) Commencing 2017 and each odd numbered year thereafter with the father for the first half and the mother for the second half;

(i) For the purposes of this Order:

A. The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and

B. The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term.

(b) In 2017 only, with the mother from 3:00pm Christmas Eve to 3:00pm Christmas Day;

(c) Subject to Orders (7) and (8) herein, commencing 2018 and each even numbered year thereafter with the mother for the first half and the father for the second half

(i) For the purposes of this Order:

A. The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and

B. The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term.

(d) AND THAT the child’s time with the father pursuant to Order (4) resume on the first week of term one.

The mother be permitted to elect to travel with the child for the long summer holiday period in 2018 and in each alternate year thereafter conditional upon the mother:

(a) Providing to the father at least one month notice prior to the term three school holidays of her intention to travel;

(b) Providing to the father at least one month prior to travel, unless otherwise agreed, copies of return airline tickets or proof of purchase of same for the child;

(c) Providing to the father at least one month prior to travel, unless otherwise agreed, an itinerary of intended destinations;

(d) Providing to the father details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the father at least weekly during the trip;

(e) Being restricted to travelling to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.

In the event that the mother intends to travel with the child pursuant to Order (7) herein, the spend time be agreed between the parties and failing agreement as follows:

(a) The child spend time with the mother from after school on the last day of term four until 4pm the second last Sunday of the long summer holidays;

(b) The child spend time with the father from 4pm the second last Sunday of the long summer holidays until 12pm on the Sunday before the commencement of Term One;

(d) The time the child would otherwise spend with the mother in the term three school holiday in the preceding year be suspended;

(e) AND THAT the child’s time with the father pursuant to Order (4) resume on the first week of term one.

For the summer holiday period commencing December 2017, the mother be permitted to travel overseas with the child as agreed in writing between the parties and failing agreement for the second half of the summer holiday period provided that the mother:

(a) notify the father at least two weeks’ prior of her intention to travel;

(b) provide the father with copies of return airline tickets or proof of purchase of same for the child, an itinerary of intended destinations including the address and contact details of any booked accommodation;

(c) provide the father with details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the father at least weekly during the trip.

10.

Subject to Order (7) herein, each parent be permitted to travel overseas with the child during any period of holiday time that the child would otherwise be spending with that parent pursuant to these Orders, provided:

(a) the travelling parent providing to the non-travelling parent:

(i) at least one school term’s notice of their intention to travel;

(ii) at least one month prior to travel, unless otherwise agreed:

A. copies of return airline tickets or proof of purchase of same for the child; and

B. an itinerary of intended destinations including an address and contact details of any booked accommodation;

(b) details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the non-travelling parent at least weekly during the trip;

(c) the travel being restricted to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.

11.

The child spend time with the respective parents on special days as follows:

(a) with the mother on the Mother’s Day weekend, from after school Friday (or 4.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day) and any time that the child would otherwise be spending with the father pursuant to these Orders on the Mother’s Day weekend be suspended;

(b) with the father on the Father’s Day weekend, from after school Friday (or 4.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day) and any time that the child would otherwise be spending with the mother pursuant to these Orders on the Father’s Day weekend be suspended;

(c) with the parent with whom the child would not otherwise be spending time on the child’s birthday pursuant to these Orders, as follows:

(i) if a school day, from after school on the child’s birthday until 7.00pm; and

(ii) if a non-school day, from 10.00am until 6.00pm on the child’s birthday.

(d) that when the child is with one parent during Christmas day, the other parent be at liberty to initiate a telephone or skype call to the child on Christmas Day between 10.00am and 10:30am local time in the country the child is spending Christmas Day and that the parent with whom the child is spending time with facilitate that call.

12.

For the purposes of changeover, unless otherwise agreed in writing, changeovers shall occur as follows:

(a) On school days, at the child’s school; and

(b) At all other times, outside the J Family Care D Town.

13.

Each parent be at liberty to communicate with the child by telephone or Skype each Sunday between 6.30pm and 7.00pm, and to facilitate such communication:

(a) the parent who does not have the child in their care is to contact the other parent via text message by 6.00pm on Sunday and elect which method of communication they seek to adopt; and

(b) the parent who has the child in their care, is to ensure that the child is available to participate in any such communication without distraction.

14.

Within 14 days from the date of these orders the mother deliver to the father’s solicitor any passport or passports for the child which she has in her possession.

15.

The father shall hold the child’s passport or passports and he shall provide the mother with the child’s passport or passports in a timely manner to enable her overseas travel with the child.

16.

The mother is to return the child’s passport to the father within 7 days of the conclusion of any overseas travel.

IT IS ORDERED BY CONSENT THAT

17.

The mother and the father be and are hereby restrained from denigrating the other parent or their family in the hearing and/or presence of the child.

18.

The parents advise each other of any change of telephone number, email or residential address within 24 hours of such change occurring.

19.

Each parent notify the other of any medical emergency or medical treatment for the child whilst she is in their care by telephone or text message as soon as practicable.

20.

The parents shall authorise any treating medical practitioner, hospital or medical practice that the child attends from time to time to provide to the other parent any information regarding the child.

21.

The parents each authorise the child’s school to provide to the other parent copies of all school reports, examples of school work, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by the child as soon as practicable.

22.

The parents are each at liberty to attend school events that parents are invited by the school to attend including but not limited to parent teacher interviews, school concerts and class based activities.

IT IS FURTHER ORDERED THAT

23.

The mother is to consult a psychologist about the “origin of her anxiety”, “the depth and extent of her fears”, and “why these are so intense in relation to the child” in accordance with the recommendations of the family consultant Mr A at paragraph 58 vii of his report dated 5 August 2016;

24.

The mother is required and authorised to provide her psychologist with a copy of the family reports of Mr B dated 5 November 2013 and 13 November 2015 and Mr A dated 5 August 2016 together with a copy of these Reasons for Judgment.

25.

The mother is to provide the father as soon as possible with written advice of the name of the psychologist she consults and provide the father with information as to the schedule of future appointments.

26.

The Independent Children’s Lawyer is discharged.

27.

Failing agreement the question of costs is reserved pending written submissions and to be determined in chambers in the absence of an application for a hearing on costs.

28.

The applicant father and the Independent Children’s Lawyer file and serve any written submissions on costs within 14 days of the date of this order;

29.

The respondent mother file and serve any written submissions on costs within a further 14 days from the date of service upon her of the written submissions;

30.

Any written submission be limited to 10 pages.

31.

All extant applications be otherwise dismissed.

32.

Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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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