Dibbs and Coleman - [2014] FCCA 2477

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIBBS & COLEMAN

[2014] FCCA 2477

Catchwords:
FAMILY LAW – Parenting – considerations of parental responsibility – whether presumption of equal shared parental responsibility is rebutted – finding of circumstances that satisfy the court that the presumption is rebuttable – consideration of objects and principles as set out in section 60B and reflected in primary and additional considerations in section 60CC(2) and (3) – capacity of each parent to foster relationship with other parent – determination as to sole parental responsibility vesting in mother and children to live primarily with mother.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 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
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
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
Edelman & Ziu (No.2) [2010] FamCAFC 236
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:

MR DIBBS

Respondent:

MS COLEMAN

File Number:

BRC 1204 of 2010

Judgment of:

Judge Coker

Hearing date:

11 June 2014

Date of Last Submission:

11 June 2014

Delivered at:

Townsville

Delivered on:

7 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Harding

Solicitors for the Applicant:

Best Wilson Buckley Family Law

Counsel for the Respondent:

Ms Carew QC

Solicitors for the Respondent:

Kennedy Spanner Lawyers

ORDERS

The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born on (omitted) 2006, and Y born on (omitted) 2007, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)a child’s health;
Notwithstanding order 1 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
Time with the parents
That the children live with the Mother.
That the children spend time with and/or communicate with the Father as agreed between the parents and failing agreement then in accordance with these Orders:
(a)Each alternate week from 3.00pm Friday to 4.00pm Sunday provided however that if the Friday is a public holiday or pupil free day, time with the Father shall then commence at 3.00pm on the Thursday; and should the Monday immediately after the…

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 Dibbs and Coleman

Details

AGLC: Dibbs and Coleman [2014] FCCA 2477
Case: [2014] FCCA 2477
Decision Date: 7 November 2014

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Coker in relation to two children, X and Y. The dispute involved the allocation of parental responsibility, living arrangements, and time spent with each parent. The orders detailed specific arrangements for day-to-day care, long-term decision-making, and time with each parent during school terms, school holidays, and special occasions.

The court was required to determine the specific terms of parenting orders that would best serve the long-term care, welfare, and development of the children. This included defining the extent of sole parental responsibility for long-term decisions, establishing the children's primary residence, and outlining a detailed schedule for the children's time with each parent, including provisions for communication, school holidays, birthdays, and other special occasions. The court also needed to address the exchange of information between parents regarding the children's health and education, and establish a framework for dispute resolution.

Judge Coker made orders granting the Mother sole parental responsibility for long-term decisions concerning the children's care, welfare, and development, subject to consultation with the Father. The children were ordered to live with the Mother, with specific provisions for the Father's time with the children, including alternate weekends, weekday time based on the Father's roster, and shared time during school holidays. The orders also stipulated communication protocols, information exchange requirements, and a prohibition on physical discipline. A detailed dispute resolution process was established, requiring parties to engage a Family Dispute Resolution Practitioner before applying to vary the orders, unless emergent circumstances applied.

Orders

Orders of the court

The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born on (omitted) 2006, and Y born on (omitted) 2007, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:

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

(b) a child’s health;

Notwithstanding order 1 herein:

(a) The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.

(b) The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.

Time with the parents

That the children live with the Mother.

That the children spend time with and/or communicate with the Father as agreed between the parents and failing agreement then in accordance with these Orders:

(a) Each alternate week from 3.00pm Friday to 4.00pm Sunday provided however that if the Friday is a public holiday or pupil free day, time with the Father shall then commence at 3.00pm on the Thursday; and should the Monday immediately after the weekend be a public or a pupil free day, then the children’s time with the Father shall then conclude at 4.00pm on the Monday.

(b) From 3.00pm until 5.30pm with the Father on the day the Father concludes his weekly roster (“concluding day”), if the father is working in the (omitted) area and in relation to this time, the following shall apply:

(i) The Father is to provide to the Mother a copy of his work roster within 14 days of the commencement of this time;

(ii) The Father is to provide the Mother with any new roster within 14 days if the concluding day changes;

The Father shall collect the children from school at the start of this time and return them to the Mother at the (omitted) café at the conclusion of time.

That the children spend time with each parent during the gazetted school holiday periods as follows:

(a) With the Mother for the first half of the end of Terms 1, 2, 3 and 4 gazetted school holiday periods in even numbered years and with the Father for the first half in odd numbered years;

(b) With the Father for the first half of the end of Terms 1, 2, 3 and 4 gazetted school holiday periods in even numbered years and with the Mother for the first half in odd numbered years.

For the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(d) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 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;

(e) The first half of the gazetted Christmas school holiday period commences from 5.00pm 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 gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

That Order 4 herein shall be suspended for the weekends during any school holiday period and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.

That the children spend special occasions with each parent as follows:

(a) In the event that the Mother’s Day weekend falls on a weekend when the children are in the Father’s care, then the Mother shall spend that weekend with the children and the Father spend time with the children the following weekend;

(b) In the event that the Father’s Day weekend falls on a weekend when the children are in the Mother’s care, then the Father shall spend that weekend with the children and the Mother spend time with the children the following weekend;

(c) On the children’s birthdays, the children shall spend time with the parent they are not living with on the day, from 1.00pm until 5.00pm, with that parent to be responsible for collecting and returning the children to the other parent.

(d) In the event that the parent’s birthdays falls on a day when the children are not in their care, then that parent shall spend time with the children for a period of not less than four hours.

10.

That the children communicate via telephone or other electronic means with the parent they are not living with at all reasonable times and, in particular, at 7.00pm each Tuesday and Thursday and on special occasions, including the children’s birthday and the parent’s birthdays .

Exchange of Information

11.

That the Mother and Father shall:

(a) Keep the other parent informed at all times of their residential addresses and mobile and landline contact telephone numbers;

(b) Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medication information to the other parent.

12.

That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost).

13.

That during the time the children are with either parent, that parent shall:

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

(b) Speak of the other parent respectfully; and

(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

Other Orders

14.

That the parents are restrained from using physical discipline on the children and do all necessary things to ensure that no other person physically disciplines the children.

Collection and Delivery

15.

Other than as provided herein, the Father and the Mother shall collect the children from and return them to the McDonald’s Restaurant on the corner of (omitted) and (omitted).

Dispute Resolution

16.

That the process to be used for resolving future disputes about the children or the terms of operation of these Orders shall be as follows:

(a) The parties shall jointly appoint a Family Dispute Resolution Practitioner by agreement;

(b) The parents shall consult with the agreed Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;

(d) In the event that they are unable for any reason to agree or have an appointment with the agreed Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

(e) The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list

(f) If the Father fails to choose then the Mother may choose.

17.

That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders, each party is to take the steps referred to in the preceding Order.

18.

That each party have liberty to apply within 28 days of the date of this Order in relation to any point of clarification in relation to the orders and in respect of costs.

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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