CROPPER & EYRE - [2015] FCCA 2959

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROPPER & EYRE

[2015] FCCA 2959

Catchwords:
FAMILY LAW – Parenting – relocation – whether equal shared parental responsibility is in the best interests of the child – determination that equal shared parental responsibility is appropriate – whether equal time or substantial and significant time is practicable should mother relocate with or without the child – consideration of section 65DAA(5) including how far apart the parents might live if relocation occurs – determination whether equal time is appropriate and in the best interests of the child if the parties remain in the same locality – what orders should be made considering objects and principles as detailed in section 60B – consideration of primary and additional considerations as detailed in section 60CC.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA(3) & (5), 65DAC, 65DAE

Heath & Hemming (No 2) [2011] FamCA 749

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438

MRR v GR (2010) 240 CLR 461

Applicant:

MS CROPPER

Respondent:

MR EYRE

File Number:

TVC 23 of 2013

Judgment of:

Judge Coker

Hearing date:

3-5 August 2015

Date of Last Submission:

5 August 2015

Delivered at:

Townsville

Delivered on:

5 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr Fellows

Solicitors for the Applicant:

Wilson Ryan & Grose

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

McDonald Leong

ORDERS

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2010, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or…

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 CROPPER & EYRE

Details

AGLC: Cropper and Eyre [2015] FCCA 2959
Case: [2015] FCCA 2959
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the matter of *Cropper & Eyre*, heard before Judge Coker, the dispute concerned parenting orders for a child, X, born in 2010. The proceedings sought to establish arrangements for the child's care, welfare, and development, including the allocation of parental responsibility and the specifics of time spent with each parent.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues concerning the child, such as education, health, and upbringing. Additionally, the court needed to establish the practical arrangements for the child's living situation, the division of day-to-day care, and the specific times the child would spend with each parent, including during school holidays and special occasions. The court also had to consider provisions for communication between the child and the non-resident parent, the exchange of information between the parents, and protocols for travel involving the child.

The court ordered that both the Mother and the Father have equal shared parental responsibility for the child's major long-term issues, requiring them to consult and make genuine efforts to reach joint decisions. Notwithstanding this, the Mother was assigned responsibility for the child's day-to-day care while the child was with her, and the Father was similarly responsible when the child was with him. The child was ordered to live with the Father, with detailed provisions outlining the time the child would spend with the Mother, varying depending on whether the Mother lived in the same location as the Father. The orders also included specific clauses regarding the return of the child's belongings, the definition of holiday periods, arrangements for special days and Christmas, communication protocols, the exchange of information, and provisions for travel, including international travel and passport applications.

Orders

Orders of the court

That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2010, including but not limited to:

(a) the child’s education (both current and future);

(b) the child’s religious and cultural upbringing;

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 1 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.

That the child live with the Father in (omitted).

That the child spend time with the Mother at all times as may be agreed and, failing agreement as follows:

(a) Should the Mother be living in the same location as the Father:

(i) Unless otherwise agreed in writing between the parties, then from after school Friday until before school on the following Friday and in each alternate week thereafter;

(ii) For the gazetted school holidays during the end of Terms 1, 2 and 3, the week-about arrangement shall continue;

(iii) For the gazetted school holidays at the end of Term 4, the child shall spend half of the holidays with each parent, being the first half with the Mother and the second half with the Father in even numbered years and the first half with the Father and the second half with the Mother in odd numbered years;

(iv) Unless otherwise agreed in writing between the parties, changeovers during the gazetted school term are to occur at the child’s school and should the Friday not be a school day or changeover is to occur during gazetted school holidays, then such changeover is to occur at the residence of the parent who has had the child in their care.

(b) Should the Mother not be living in the same location as the Father:

(i) Unless otherwise agreed in writing between the parties, during each gazetted school term on the third and seventh weekend from 6.00pm on Friday or Thursday, should the Friday be a public holiday or pupil free day, until 6.00pm on Sunday or Monday, should the Monday be a public holiday or pupil free day;

(ii) For the whole of the end of Term 1 and end of Term 3 gazetted school holidays;

(iii) For the gazetted school holidays at the end of Term 2 and the end of Term 4, the child shall spend half of the holidays with each parent, being the first half with the Mother and the second half with the Father in even numbered years and the first half with the Father and the second half with the Mother in odd numbered years;

(iv) Unless otherwise agreed in writing between the parties, changeover during the gazetted school term and during the gazetted holiday periods shall occur in (omitted), with each parent to be responsible for the costs associated with their attendance in (omitted) for the purposes of changeover.

That any toys, clothing and personal items sent with the child at the commencement of each period of time with either parent be returned with the child to the other parent at the conclusion of each period of time.

That for the purposes of defining the first and second half of gazetted school holiday periods or the whole of the gazetted school holiday periods, that the following apply:

(a) the whole of the end of Term 1 gazetted school holiday period from 5.00pm on the Thursday preceding Good Friday, should the end of Term 1 commence on the Easter long weekend and otherwise from 6.00pm on the Friday until 6.00pm on Sunday preceding the recommencement of school;

(b) the first half of the end of Term 2 gazetted school holidays shall be from 6.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;

(c) the second half of the end of Term 2 gazetted school holidays commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(d) the whole of the end of Term 3 gazetted school holiday period commences at 6.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;

(e) the first half of the end of Term 4 gazetted school holiday period commences at 6.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(f) the second half of the end of Term 4 gazetted school holiday period commences at 6.00pm on the Saturday in the middle weekend of the end of Term 4 gazetted school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

Special days

Providing the parents are in the same location, the parents will each spend time with the child on special days if the child is not already in their care, unless otherwise agreed between the parents, as follows:

(a) With the Mother on Mother’s Day and with the Father on Father’s Day from 9.00am until 5.00pm;

(b) With the Mother on the Mother’s birthday and with the Father on the Father’s birthday from 3.00pm until 7.00pm;

Christmas

Providing the parents are in the same location, during the Christmas period the child will spend time with the parent with whom she is not spending time as follows:

(a) In even numbered years with the Father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day, and

(b) In odd numbered years with the Mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day.

Communication

10.

That unless otherwise agreed, the child have the opportunity to communicate with the parent with whom she is not spending time by telephone between 6.30pm and 7.00pm each Tuesday, Thursday and Saturday, with the parent not having the child in their care to be responsible for initiating the call.

11.

When the child is communicating with the other parent each parent shall:

(a) Ensure that the child is available to receive the telephone call;

(b) If the parent receiving the call misses the call, he/she will ensure that the child telephones the other parent by return as quickly as possible;

12.

That the child be at liberty to call either parent at all reasonable times and the parent whom she is with shall assist the child to make any call she requests.

Exchange of information

13.

The parents shall:

(a) Communicate with each other about non-urgent issues relating to the child by mobile phone text message or email;

(b) Communicate with each other about any urgent issues relating to the child by telephone, or if the telephone is not answered, by mobile phone text message;

(d) Keep each other informed at all times as to their residential addresses or mobile telephone numbers and email addresses;

(e) Keep each other informed as to the names and addresses of any treating medical practitioners, healthcare practitioners who come into any contact with the child and this Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the child;

(f) Inform the other parent as soon as reasonably practicable of the welfare of the child and any injury or illness affecting the child that requires any medical or hospital attention;

(g) Keep the other parent informed of and supply the other parent with the dates and times of the child’s sporting and extracurricular activities.

Education

14.

Any educational/child care institutions attended by the child are hereby authorised and empowered to provide to both parents any information about the child’s educational progress and school/child care related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the child. Any out of pocket expense connected to any such request shall be the responsibility of the parent who made such request.

15.

Both parents are at liberty to attend the child’s sporting and extracurricular activities.

Privacy, Non-Denigration

16.

That during the time the child is with either parent, the parent shall:

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent respectfully; and

(c) Not denigrate or insult the other parent or the other parent’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the other parent’s family in the hearing or presence of the child.

Travel

17.

That if either parent wishes to travel with the child, any such travel only occur during the time with that parent pursuant to these Orders unless otherwise agreed between the parents in writing.

18.

That if either parent intends to travel with the child for longer than a weekend, that parent will provide the other parent with the addresses of where the child will stay and contact telephone numbers of the child whilst away.

19.

That if either parent intends to travel outside Australia with the child, the travelling parent will, at least two (2) months prior to the date of travel, inform the other parent in writing of the proposed trip and provide the parent with a flight itinerary, a list of the countries intended to be travelled to, a list of the places and any relevant addresses of where the child will visit and/or stay and contact numbers for the child whilst away.

20.

That if either parent travels outside of Australia with the child, the travelling parent will arrange and facilitate telephone contact between the child and the non-travelling parent, at a time to be agreed between the parties in writing, no less frequently than on two occasions each week the child is outside Australia, with the travelling parent to initiate the telephone call.

21.

That if the child does not hold a current passport, then the parent seeking to travel with the child shall seek the consent of the other parent, not unreasonably withheld, to the issue of a passport and shall be responsible for the payment of any cost associated with obtaining a passport for the child.

22.

That should either party have any application for costs, then the party seeking costs shall within 28 days of the date of this Order file submissions in relation to costs and the other party shall respond within 21 days and determination, unless otherwise requested in writing, shall occur in Chambers.

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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