FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEBONO & CALLEN | [2020] FCCA 1857 |
| Catchwords: FAMILY LAW – Parenting – final relocation application – where Mother moved with the child to Region B area from Metropolitan Sydney in June 2018 – where Father brought Application to prevent the relocation in June 2018 – where Father asserts Mother relocated without prior notice and without his consent – where Mother asserts she informed Father of her intention as and from January 2018 – where Mother asserts specific reasons for her desire to relocate – where in the child’s best interests to not change his primary carer – where requiring the Mother to relocate back to Metropolitan Sydney will negatively impact her – where cause on Mother likely to affect her ability to most effectively parent the child – where Court orders equal shared parental responsibility – where significant and substantial time orders made with options for Father. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61C, 61DA, 65D, 65DAA, 65DAE, 67Q, 67U |
| Cases cited: M & M (1988) FLC 91-973 |
| Applicant: | MR DEBONO |
| Respondent: | MS CALLEN |
| File Number: | SYC 4067 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 27 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr O'Sullivan of O'Sullivan Legal |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Justice Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr O'Brien |
| Solicitors for the Independent Children's Lawyer: | Russell Kennedy Aitken Lawyers |
ORDERS
That the Applicant Father Mr Debono (‘the Father’) and the Respondent Mother Ms Callen (‘the Mother’) have equal shared parental responsibility for the child X born in 2015 (‘X’).
That X live with his Mother.
That X spend time with his Father:
(a)For the balance of the year 2020, each alternate weekend from 6:45PM on Wednesday until either:
(i)6:00PM on Sunday; or
(ii)9:00AM on Monday;
at the Father’s option PROVIDED that if the end of the time will be 9.00AM on Monday, the Father will notify the mother of such in writing by no later than 7.00PM the previous Tuesday.
(b)From 6:45PM on 20 December 2020 until 6:45PM on 2 January 2021 and from 6:45PM on 16 January 2021 until 6:45PM on 23 January 2021, and during those times order 3(a) is suspended.
(c)From the year 2021 onwards:
(i)During school term time, each alternate weekend from 6:45PM on Friday until either:
A. 6:00PM on Sunday; or
B. the start of school on Tuesday,…
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- AGLC
- DEBONO & CALLEN [2020] FCCA 1857
- Case
- [2020] FCCA 1857
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether it was in X's best interests to remain with his primary carer, the Mother, in the Region B area, or to order a return to Metropolitan Sydney. This involved assessing the potential negative impact on the Mother's ability to effectively parent X should she be required to relocate back, and balancing this against the Father's asserted interests and the child's best interests.
Judge Morley reasoned that requiring the Mother to relocate back to Metropolitan Sydney would negatively impact her capacity to parent X effectively. Consequently, the court ordered that the Father and Mother have equal shared parental responsibility for X. The orders stipulated that X would live with his Mother, and detailed significant and substantial time arrangements for the Father, including specific provisions for school terms, school holidays, birthdays, and communication between parents and child.
Orders
Orders of the court
1.
That the Applicant Father Mr Debono (‘the Father’) and the Respondent Mother Ms Callen (‘the Mother’) have equal shared parental responsibility for the child X born in 2015 (‘X’).
2.
That X live with his Mother.
3.
That X spend time with his Father:
(a) For the balance of the year 2020, each alternate weekend from 6:45PM on Wednesday until either:
(i) 6:00PM on Sunday; or
(ii) 9:00AM on Monday;
at the Father’s option PROVIDED that if the end of the time will be 9.00AM on Monday, the Father will notify the mother of such in writing by no later than 7.00PM the previous Tuesday.
(b) From 6:45PM on 20 December 2020 until 6:45PM on 2 January 2021 and from 6:45PM on 16 January 2021 until 6:45PM on 23 January 2021, and during those times order 3(a) is suspended.
(c) From the year 2021 onwards:
(i) During school term time, each alternate weekend from 6:45PM on Friday until either:
A. 6:00PM on Sunday; or
B. the start of school on Tuesday, provided the Father stays over on the Sunday and Monday nights with X in the Town C region;
at the Father’s option, PROVIDED that if the end of the time will be the start of school on Tuesday, the Father will notify the mother of such in writing by no later than 7:00PM the previous Thursday.
(ii) During the school holidays at the end of terms 1, 2, and 3:
A. For the first 10 days of the school holidays in even-numbered years;
B. For the last 10 days of the school holidays in odd numbered years; and
(iii) During the Christmas school holidays at the end of term 4:
A. For the first half of those holidays in even numbered years; and
B. For the second of those holidays in odd-numbered years.
4.
During the whole of each school holiday period, order 3(c)(i) will cease and will recommence on the weekend first after the end of the school holidays that commenced in even numbered years, and on the weekend second after the end of the school holidays that commenced in odd numbered years, and for these purposes school holidays start on the day that school ends for X and end on the day before X recommences his school attendance.
5.
That from 2021, the parent who does not have care of X during the first half of the Christmas school holiday period shall spend time with X from 10:00AM on 26 December until 10:00AM on 28 December.
6.
That on X’s birthday each year, he shall spend time with each of his parents at times to be agreed, with such times to be not less than three (3) hours with each parent on a non-school day and two (2) hours with each parent on a school day, and the non-carer parent shall collect him from and return him to the home of the parent who has care of X under the orders on the day.
7.
That in the event that X would otherwise be in his Father’s care for the Mother’s Day weekend, X shall be returned to his Mother at 6:00PM on the Saturday before Mother’s Day;
8.
That in the event that X would otherwise be in his Mother’s care for the Father’s Day weekend, X shall spend time with his Father from 6:00PM on the Saturday before father’s Day until 6.45PM on Father’s Day.
9.
That unless explicitly provided for otherwise, changeover is to occur outside the D food outlet shop on E Street, Town F, and changeovers may be effected by the parents, or a family member of either parent, or a godparent of X.
10.
That if either party wishes to take X out of the Commonwealth of Australia, then they shall advise the other party in writing no later than 30 days before the day of departure, of the details of:
(a) The duration of the trip;
(b) The time and the date of the departure;
(c) The time and date of return to the Commonwealth of Australia;
(d) The address and contact details of where X will be throughout the trip; and
(e) Flight numbers and/or other relevant information.
11.
That the Father be permitted to communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and has not been in his care on the day, at some time between 6:00PM and 6:30PM, with such telephone, FaceTime, or Skype communication to be initiated by the Father.
12.
That the Mother be permitted to communicate with X by telephone, FaceTime, or Skype each Tuesday, Thursday, and Sunday when X is not and has not been in her care on the day, at some time between 6:00PM and 6:30PM, with such telephone, FaceTime, or Skype communication to be initiated by the Mother.
13.
That each of the parties shall be entitled to attend any social, sporting, or educational event involving X including any event associated with any extra-curricular activity that allows for parental attendance or participation and both parties shall Inform the other party of such events and all of the relevant details as soon as reasonably practical.
14.
That the parties shall:
(a) Keep the other party informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email addresses and notify the other parent within 24 hours of a change to those details;
(b) Keep the other party informed of the names and details of any treating medical or other allied health practitioner who treats X and authorise such practitioners to provide the other party with information they are lawfully able to provide about X;
(c) Inform the other party as soon as is reasonably practicable of any medical issue, significant health issue or significant illness or injury suffered by X and by this order all treating medical practitioners are to release details of X's medical condition to the other parent;
(d) If X is prescribed medication the parent who buys X's medication will provide the other parent with the medication and also instructions for its use at the time X goes into the other parent's care.
15.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of X.
16.
That each of the parents is restrained from allowing X to remain in the presence of or within X’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
17.
That each of the parents is restrained from discussing these proceedings with X or at all in X’s presence or hearing or showing X any document connected with these proceedings.
18.
That each of the parents is restrained from permitting any other person to discuss these proceedings with X or at all in X’s presence or hearing or show X any document connected with these proceedings.
19.
That each party shall do all things and sign all documents necessary to ensure that each of them shall receive information from child care providers, school and education providers, event providers and all medical information in relation to X.
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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