Coulston and Walters - [2016] FCCA 29

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULSTON & WALTERS

[2016] FCCA 29

Catchwords:
FAMILY LAW – Parenting – whether the children should live in Western Australia or New South Wales – where the mother failed to comply with interim orders – where concerns about aspects of father’s parenting capacity.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Morgan and Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Palmer & Hammer (No.2) [2011] FamCAFC 196
Sayer & Radcliffe [2015] Fam CAFC 209

Applicant:

MS COULSTON

Respondent:

MR WALTERS

File Number:

SYC 7243 of 2010

Judgment of:

Judge Altobelli

Hearing dates:

21– 23 December 2015

Date of Last Submission:

23 December 2015

Delivered at:

Wollongong

Delivered on:

22 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

PJ Carey Solicitor

Counsel for the Independent Children's Lawyer:

Mr Alexander

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

The Children, X born (omitted) 2006 and Y born (omitted) 2008 (“the Children”), live with the Mother in the Perth region, Western Australia.
The Mother is to have sole parental responsibility of the children but for the issues of:
(a)relocation of the children’s residential address outside of the Perth region, Western Australia; and
(b)the children’s names
in which there be equal shared parental responsibility with the Father.
The Children are to spend time with the Father on the following conditions and as follows:
(a)except as provided for in these orders, for one week during each of the school holidays, and if NAIDOC week occurs during a school holiday, the children’s time with the Father is to occur during that week;
(b)the Mother is to nominate the week that the Children are to spend time with the Father at least 4 weeks before the end of the school term, failing which is it to be the first week of the school holidays, except in relation to the December/January school holidays when it will be the third week;
(c)with the exception of the December/January school holidays, the Children’s cost of travel is to be borne by the Mother. During the December/January school holidays, the Father is to arrange and pay for the Children’s travel from Perth to Sydney, and the Mother is to arrange and pay for the Children’s travel from Sydney to Perth. Any mid-term travel organised by the Father is to be at his own expense; and
(d)the Mother is responsible for delivering the Children to, and collecting them from, Perth airport, and the Father is responsible for collection from, and delivery to, Sydney airport.
In 2016 only, and notwithstanding the previous orders, the Children’s time with the Father is to take place on the following further conditions:
(a)the Children’s time with the Father during the end of Term 1 school holidays is to be day-only time with the exception of 2 non-consecutive nights;
(b)the Children’s time with the Father during the end of term…

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 Coulston and Walters

Details

AGLC: Coulston and Walters [2016] FCCA 29
Case: [2016] FCCA 29
Decision Date: 22 January 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Altobelli regarding the living arrangements and time spent between the Father and his two children, X and Y. The children resided with the Mother in Perth, Western Australia. The dispute centred on the terms of parental responsibility, the children's time with the Father, and various conditions attached to these arrangements.

The court was required to determine the extent of sole and equal shared parental responsibility for specific issues, including relocation, the children's names, and the detailed arrangements for the children's time with the Father. Further issues included the conditions under which the Father could spend time with the children, particularly concerning accommodation, substance use, and the involvement of paternal relatives. The court also addressed communication between the children and their parents, the Father's participation in specific courses, and drug testing requirements.

Judge Altobelli made orders that the Mother have sole parental responsibility for the children, except for issues of relocation outside the Perth region and the children's names, for which there would be equal shared parental responsibility. Specific, detailed provisions were made for the children's time with the Father, including holiday arrangements, travel costs, and conditions for overnight stays, particularly in 2016. Additional conditions were imposed on the Father, such as undertaking anger management and parenting courses, and submitting to random urinalyses, with the Independent Children's Lawyer to oversee aspects of this testing. Both parents were restrained from speaking negatively about each other in the children's presence and from discussing proceedings or their relationship in front of the children. The Mother was ordered to pay a contribution towards the costs incurred by the Legal Aid Commission for representing the children.

Orders

Orders of the court

The Children, X born (omitted) 2006 and Y born (omitted) 2008 (“the Children”), live with the Mother in the Perth region, Western Australia.

The Mother is to have sole parental responsibility of the children but for the issues of:

(a) relocation of the children’s residential address outside of the Perth region, Western Australia; and

(b) the children’s names

in which there be equal shared parental responsibility with the Father.

The Children are to spend time with the Father on the following conditions and as follows:

(a) except as provided for in these orders, for one week during each of the school holidays, and if NAIDOC week occurs during a school holiday, the children’s time with the Father is to occur during that week;

(b) the Mother is to nominate the week that the Children are to spend time with the Father at least 4 weeks before the end of the school term, failing which is it to be the first week of the school holidays, except in relation to the December/January school holidays when it will be the third week;

(c) with the exception of the December/January school holidays, the Children’s cost of travel is to be borne by the Mother. During the December/January school holidays, the Father is to arrange and pay for the Children’s travel from Perth to Sydney, and the Mother is to arrange and pay for the Children’s travel from Sydney to Perth. Any mid-term travel organised by the Father is to be at his own expense; and

(d) the Mother is responsible for delivering the Children to, and collecting them from, Perth airport, and the Father is responsible for collection from, and delivery to, Sydney airport.

In 2016 only, and notwithstanding the previous orders, the Children’s time with the Father is to take place on the following further conditions:

(a) the Children’s time with the Father during the end of Term 1 school holidays is to be day-only time with the exception of 2 non-consecutive nights;

(b) the Children’s time with the Father during the end of term 2 school holidays is to be day-only time with the exception of 3 nights, to be taken as 2 consecutive nights, then 1 night;

(c) the Children’s time with the Father during the end of term 3 school holidays is to be day-only time with the exception of 4 nights, to be taken as 2 consecutive nights, then 2 consecutive nights;

(d) when the Children spend time with the Father at night time, they are to be based at the home of the paternal grandparents or paternal aunt; and

(e) as from the 2016-2017 school holidays, the Children’s time with the Father at night becomes consecutive, and subject only to the condition that they be primarily based at the home of the Paternal Grandparents or Paternal Aunt.

In addition to the Father’s time in accordance with the previous orders, the Father may spend additional time with the Children as follows:

(a) For one weekend during each school term upon the Father giving to the Mother two weeks notice, provided that:

(i) such time will be spent in the environs of Perth;

(ii) such time will commence at a time after school on Friday and conclude no later than 5:00pm on Sunday;

(iii) during such time, the Father will honour any commitment the Children have to participate in any extra-curricular or sporting activity; and

(iv) such time will be conditional on the Mother being satisfied at change over that the Father is not under the influence of any drug/s or alcohol.

(b) Such further or different time as agreed with the intention that, if the Mother returns with the Children to the environs of (omitted), the Children will spend time with their father each alternate weekend from after school Friday until 5:00pm Sunday, and for one week in each holiday period.

Unless an order expressly provides to the contrary, such time as the Children spend with the Father is further dependent on the following conditions:

(a) if such time is spent in Western Australia, the Children must be accommodated in appropriate accommodation reasonably proximate to the Mother’s home.

(b) the Father must not consume either alcohol or any illicit substance during the period that the Children spend time with him; and

(c) prior to the Children being permitted to remain in the sole care of their father in New South Wales during 2016, the Paternal Grandparents or Paternal Aunt must be satisfied that the Father is able to properly care for the Children (including, but not limited to, not being under the influence of any drug or alcohol) each morning of their stay and must give undertakings to the Court in a form prepared by the Independent Children’s Lawyer recognising the obligation imposed on him or her and their preparedness to accept that obligation.

The Mother and the Father are each to facilitate communication twice weekly between the Children and their other parent with such communication to occur between 5:30pm and 6:00pm on Fridays and Sundays, provided that on Sunday such communication will be by Facetime or Skype or similar audiovisual communication.

Within three months the Father enrol in an anger management course and a parenting after separation course and complete such courses within six months thereafter.

The Father submit to three random urinalyses on 48 hours notice within six months of the date of these orders on the following conditions:

(a) for this purpose, the appointment of the Independent Children’s Lawyer (“ICL”) is extended for six months;

(b) the ICL is to determine the date and is to receive the results of such urinalyses;

(d) if the urinalyses or any one of them is positive to any illicit substance, or if the Father fails to provide a sample within 48 hours of being requested to do so, the time of the Children with the Father must thereafter be supervised until he has provided three clear urinalyses at intervals of not less than a month as requested by the ICL.

10.

The Mother keep the Father informed of the following:

(a) the school(s) attended by the Children;

(b) any specialist medical appointments or reports provided to the Mother in relation to the Children or either of them;

11.

The Mother and Father be hereby restrained from:

(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child/ren; and

(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child/ren or permitting any other person to do so.

12.

The Mother pay to the Legal Aid Commission within 28 days an amount of $2,750.00, being a 50% share of the cost incurred by the Commission in representing the children in these proceedings

13.

The Contravention Application filed 21 August 2015 be stood over to 28 June 2016 at 9:30am for Mention.

14.

Any future Application filed in this matter be listed before Judge Altobelli, provided that he is reasonably available and subject to any application of a party.

15.

Liberty is granted to the parties to re-list the matter on 7 days notice by joint application to the Court in Chambers in appropriate circumstances regarding the interpretation, implementation or enforcement of these Orders.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.