Denning and Denning - [2019] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENNING & DENNING

[2019] FCCA 1779

Catchwords:
FAMILY LAW – Parenting – shared care – watchlist orders.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Cases cited:

Kaur & Kaur [2014] FCCA 2843
Kuebler & Kuebler [1978] FamCA 26
Line & Line [1996] FamCA 145

Applicant:

MR DENNING

Respondent:

MS DENNING

File Number:

MLC 3940 of 2017

Judgment of:

Judge Harland

Hearing date:

7 May 2019

Date of Last Submission:

7 May 2019

Delivered at:

Melbourne

Delivered on:

7 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms Metherell

Solicitors for the Applicant:

Purcell & Purcell

Counsel for the Respondent:

Ms Goldthorp

Solicitors for the Respondent:

Barbayannis Lawyers Pty Ltd

ORDERS

The Husband and Wife have equal shared parental responsibility for the children [X] born … 2013 and [Y] born … 2015 (“the children”).
The children live with the Respondent Wife.
The children spend time with and communicate with the Husband as follows:-
(a)Each alternate weekend from 3.30pm or the conclusion of school Friday (with changeover to take place at school) until 5.00pm Sunday;
(b)Each Wednesday from the conclusion of kindergarten/school or 3.30pm until 6.00pm, with changeover to occur at Suburb A Library at the conclusion of time;
(c)That if the children are not already in the Husband’s care on Father’s Day, they spend time with the Husband from 5.00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day, with such time to suspend the time the Wife would otherwise be due to spend with the children;
(d)From the conclusion of school/kindergarten or 3.30pm until 6.30pm on the children’s birthdays and the Husband’s birthday, if the children are not otherwise in the Husband’s care, with changeover to occur at Suburb A Library unless otherwise agreed;
(e)For Christmas:
(i)From 4.00pm 24 December 2019 until 4.00pm 25 December 2019, and each alternate year thereafter;
(ii)From 4.00pm 25 December 2020 until 4.00pm 26 December 2020, and each alternate year thereafter;

IT IS ORDERED BY THE COURT THAT:

(f)During Term 3 2019, Term 1 and Term 2 2020 school holiday periods for 2 periods of 3 consecutive nights as agreed and failing agreement:
(i)In week 1 from the conclusion of the school term or 5pm Friday to 5pm Monday and
(ii)In during the middle weekend of the holidays from 5pm Friday to 5pm Monday.

(g)During the 2019/2020 long summer school holiday period, each alternate week for periods of 4 consecutive nights as agreed, and failing agreement, the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Tuesday.
(h)During Term 3 2020, Term 1 and Term 2 2021 school holiday periods for 5 consecutive nights at dates to be agreed and failing agreement from 5pm on the middle Friday until 5pm the following Wednesday.
(i)During the 2020/2021 long summer holiday period each alternate week for a period of 5 nights as agreed and failing agreement the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Wednesday.
(j)Commencing Term 3 2021 and in…

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 Denning and Denning

Details

AGLC: Denning and Denning [2019] FCCA 1779
Case: [2019] FCCA 1779
Decision Date: 7 May 2019

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Harland in the Federal Circuit Court of Australia. The proceedings involved a Husband and Wife, who are the parents of two children, [X] and [Y]. The dispute centred on the arrangements for the children's living arrangements, time spent with each parent, and international travel.

The court was required to determine the specific terms of shared parental responsibility, including the children's primary residence, the schedule for the children to spend time with the Husband, and provisions for communication and special occasions. Further issues before the court included the conditions under which each parent could travel overseas with the children, including notification requirements, duration limits, financial surety, and passport arrangements. The court also addressed the removal of the children from the Airport Watchlist and the discharge of previous orders.

Judge Harland made orders establishing equal shared parental responsibility for the children, with the children to live with the Wife. The orders detailed a comprehensive schedule for the children's time with the Husband, encompassing alternate weekends, mid-week time, public holidays, birthdays, and school holidays, with specific provisions for make-up time and changeover locations. The court also imposed strict conditions on international travel, requiring significant advance notice, detailed itineraries, proof of return travel, accommodation, and comprehensive travel insurance. A financial surety of $50,000 was mandated for the travelling parent, to be held by their solicitor, to ensure the children's return to Australia. The court also ordered the removal of the children from the Airport Watchlist and the discharge of previous orders relating to this.

Orders

Orders of the court

The Husband and Wife have equal shared parental responsibility for the children [X] born … 2013 and [Y] born … 2015 (“the children”).

The children live with the Respondent Wife.

The children spend time with and communicate with the Husband as follows:-

(a) Each alternate weekend from 3.30pm or the conclusion of school Friday (with changeover to take place at school) until 5.00pm Sunday;

(b) Each Wednesday from the conclusion of kindergarten/school or 3.30pm until 6.00pm, with changeover to occur at Suburb A Library at the conclusion of time;

(c) That if the children are not already in the Husband’s care on Father’s Day, they spend time with the Husband from 5.00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day, with such time to suspend the time the Wife would otherwise be due to spend with the children;

(d) From the conclusion of school/kindergarten or 3.30pm until 6.30pm on the children’s birthdays and the Husband’s birthday, if the children are not otherwise in the Husband’s care, with changeover to occur at Suburb A Library unless otherwise agreed;

(e) For Christmas:

(i) From 4.00pm 24 December 2019 until 4.00pm 25 December 2019, and each alternate year thereafter;

(ii) From 4.00pm 25 December 2020 until 4.00pm 26 December 2020, and each alternate year thereafter;

IT IS ORDERED BY THE COURT THAT:

(f) During Term 3 2019, Term 1 and Term 2 2020 school holiday periods for 2 periods of 3 consecutive nights as agreed and failing agreement:

(i) In week 1 from the conclusion of the school term or 5pm Friday to 5pm Monday and

(ii) In during the middle weekend of the holidays from 5pm Friday to 5pm Monday.

(g) During the 2019/2020 long summer school holiday period, each alternate week for periods of 4 consecutive nights as agreed, and failing agreement, the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Tuesday.

(h) During Term 3 2020, Term 1 and Term 2 2021 school holiday periods for 5 consecutive nights at dates to be agreed and failing agreement from 5pm on the middle Friday until 5pm the following Wednesday.

(i) During the 2020/2021 long summer holiday period each alternate week for a period of 5 nights as agreed and failing agreement the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Wednesday.

(j) Commencing Term 3 2021 and in all school term holidays thereafter for half of all school term holidays as agreed and failing agreement the first half.

(k) Commencing the 2021/2022 long summer holidays and each long summer holidays thereafter, on a week about basis as agreed and failing agreement commencing the first week in odd numbered years and commencing the second week in even numbered years.

IT IS ORDERED BY CONSENT THAT:

(l) By telephone at all reasonable times the children are in the Wife’s care;

(m) At such other times that may be agreed between the parties.

The Husband’s time be suspended as follows:

(a) That if the children are not already in the Wife’s care on Mother’s Day, they spend time with the Wife from 5:00pm the day preceding Mother’s Day until 5:00pm on Mother’s Day with such time to suspend the time the Husband would otherwise be due to spend with the children;

(b) From the conclusion of school/kindergarten or 3.30pm until 6.30pm on the children’s birthdays and the Wife’s birthday, if the children are not otherwise in the Wife’s care, with changeover to occur outside the Husband’s residence;

(d) At such other times that may be agreed between the parties.

For the purposes of Order 3, school holiday periods are defined as commencing on the last day of the school term until the day before the commencement of the new school term, and the Father’s term time recommence on the first weekend of the school term.

IT IS ORDERED BY THE COURT THAT:

Unless otherwise agreed in writing or otherwise set out in these Orders, when changeover does not take place at the children’s kindergarten or school, it shall take place at Suburb A Library at the commencement of the Husband’s time with the children and at Train Station B at the conclusion of his time with the children.

IT IS ORDERED BY CONSENT THAT:

The Husband shall be in substantial attendance during his time with the children for the next twelve months and if he has to work during that time he shall advise the Wife as to who is caring for the children.

The Father and Mother use a Parenting Application (MyMob or such other application as agreed) for communication between them in relation to all matters pertaining to the children’s health, education, care, welfare and development.

In the event the children are sick when they are due to spend time with the Husband:

(a) the Wife is to notify the Husband by way of text message at least 4 hours prior to changeover that the children will not be available to spend time;

(b) within 48 hours of such notification,

(i) the Wife is to provide the Husband with a medical certificate to evidence the child/s medical condition; and

(ii) the Wife provide the Husband with three proposed dates for make up time and the Husband make his selection from those dates.

10.

Each parent:

(a) Be at liberty to obtain school/kindergarten reports, notices, newsletters, photographs and the like for the children;

(b) Be at liberty to attend separate parent-teacher interviews for the children;

(c) Be at liberty to attend all school/kindergarten activities, functions and extra-curricular activities to which parents ordinarily attend;

(d) Keep the other parent advised via MyMob or such other application as agreed, at all times, of their current residential address, email address, landline telephone number (if applicable) and mobile telephone number, and notify the other within 7 days of any change;

(e) Keep the other parent advised via telephone or SMS text message, and as soon as practicable, of any medical emergency, serious illness or injury suffered by the children while in that party’s care, which requires treatment or consultation with a medical practitioner;

(f) Keep the other parent advised by MyMob or such other application as agreed, at all times, of the names and contact details of all medical practitioners treating the children;

(g) Keep the other parent advised of any medical appointment made for the children or either of them, with the other parent to be at liberty to discuss the children’s care with the relevant professional;

(h) Have liberty to provide a copy of these Orders to any school, kindergarten or child care at which the children or either of them attends, or to any medical practitioner upon whom the children or either of them attends.

11.

The parties by themselves, their servants and/or agents be restrained from:

(a) Denigrating each other in the presence or within hearing of the children;

(b) Discussing any matter pertaining to these proceedings with or in the presence or hearing of the children.

12.

In the event either parent travels interstate with the children, they shall let the other parent know details of the travel, destination and accommodation 7 days in advance of such travel.

IT IS ORDERED BY THE COURT THAT:

Airport Watchlist and International Travel

13.

Orders 2,3,4 and 5 of the Orders dated 26 April 2017 be discharged.

14.

The Children [X] born … 2013 and [Y] born … 2015 be and are hereby removed from the Airport Watchlist.

15.

The Husband and the Wife be permitted to travel overseas with the children provided that:

(i) The travelling parent provide the non-travelling parent with a detailed itinerary of the intended travel, including all dates and times of travel, and intended destinations at least 60 days prior to departure.

(ii) The period of travel is no more than four consecutive weeks each calendar year for the Wife and no more than two consecutive weeks per calendar year for the husband.

(iii) A copy of the following is provided to the non-travelling party at least 28 days prior to departure:

(a) return flight tickets for the travelling party and the children;

(b) contact details for the travelling party and any family members whom the children are to stay with;

(c) details, including addresses and contact numbers, for all accommodation at which the travelling party intends to stay in , whether paid accommodation or the homes of family or friends.

(d) Proof of comprehensive travel insurance for the children for the duration of the intended travel.

(iv) At least 28 days prior to departure the travelling party provide to his or her solicitor;

(a) the sum of $50,000 or;

(b) a signed Transfer of Land in registerable form to the non-travelling party for the transfer of property in the name of the travelling party which has equity of at least $50,000

to be held on trust until the travelling party returns with the children to Australia (“the surety”)

16.

If the travelling party fails to return the children or either of them to Australia in accordance with the travel itinerary provided in accordance with Order 15(i) herein (save for circumstances beyond his or her control such as a delayed flight) the travelling parent’s solicitor be authorised to immediately transfer the surety to the non-travelling parent’s possession in order to fund proceedings to seek the return of the children to Australia.

17.

In order to comply with Order 16 herein the non-travelling party be permitted to sell the relevant property and utilise proceeds in the sum of $50,000.

18.

Each parent do all acts and things as required to obtain, maintain and renew the children’s passports for the children with the costs to be shared equally.

19.

In the event either parent wishes to travel to Country D with the children then the travelling parent shall make application for appropriate travel Visas for the children and the non-travelling parent shall do all things required to assist in obtaining such Visas for the children.

20.

The Wife shall hold the child [X]’s passport and the Husband shall hold the child [Y]’s passport and within 7 days of compliance with Orders 15(i)-(iv) inclusive herein the non- travelling party shall provide the passport they hold to the travelling party such passport to be returned to the non-travelling party within 7 days of return from international travel.

21.

In the event international travel interferes with the children’s time with the non-travelling parent then makeup time will occur prior to and following the period of travel.

22.

The non-travelling party is at liberty to telephone the children at least twice a week during the period of travel at reasonable times.

23.

The Mother be permitted to travel for two weeks each year with the children until the end of Term 3 2021 holiday and thereafter in accordance with Order 15(ii) herein.

IT IS ORDERED BY CONSENT THAT:

24.

Pursuant to S65DA(2) and S62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet annexed hereto and these particulars are included in these orders.

25.

All extant applications be dismissed.

26.

Orders 2, 3, 4 and 5 of the orders made on 26 April 2017 be discharged.

27.

The Australian Federal Police remove the names of the [X] born … 2013 and [Y] born … 2015 from the airport watch list at all points of international arrival and departure in Australia.

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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