Doyle and Rusedski - [2016] FamCA 317

FAMILY COURT OF AUSTRALIA

DOYLE & RUSEDSKI

[2016] FamCA 317

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Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)

Fardon v the Attorney-General for the State of Queensland [2004] HCA 46
Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3
Line and Line (1997) FLC 92-729
MW v Director-General, Department of Community Services [2008] HCA 12
Nash v Nash [1973] 2 All ER 704
Nudd v R [2006] HCA 9; 80 ALJR 614
Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826
U v U [2002] HCA 36

APPLICANT:

Mr Doyle

RESPONDENT:

Ms Rusedski

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4646

2012

DATE DELIVERED:

6 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14, 15, 18 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Baczynski

SOLICITOR FOR THE APPLICANT:

Daniel Lawyers & Associates

COUNSEL FOR THE RESPONDENT:

Ms Burt

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates

Orders

That all parenting orders to date (and specifically paragraphs 9, 11 and 12 of the orders made on 14 August 2013) are discharged.
The Marshal and all officers of the Australian Federal Police and of the police forces of the states and territories are requested to remove the name of B born … 2009 from the Airport Watch List in force at all points of arrival and departure within the Commonwealth of Australia.
That the mother has sole parental responsibility for all major long-term parenting decisions relating to B born … 2009.
That save as to paragraph (3) of these orders, each parent has parental responsibility for decisions relating to the child when he is in their care.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a)      the nature of the decision to be made; and
(b)      her views as to what should be done; and
(c)      requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided, the mother shall be entitled to make the decision without further…

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 Doyle and Rusedski

Details

AGLC: Doyle and Rusedski [2016] FamCA 317
Case: [2016] FamCA 317
Decision Date: 6 May 2016

CaseChat Overview and Summary

In the matter of *Doyle and Rusedski*, Cronin J of the Federal Circuit Court of Australia was required to determine parenting orders concerning the child B, born in 2009. The proceedings involved a dispute between the parents regarding the child's future care, residence, and the allocation of parental responsibility. The court's decision addressed the discharge of previous orders and the establishment of new arrangements for B's upbringing.

The central legal issues before the court were the appropriate allocation of parental responsibility for long-term decisions, the arrangements for the child's time with each parent, and the father's ability to access information regarding the child's education and health. The court also considered the mother's liberty to remove the child from Australia and the father's access to the child during specific periods, including school holidays and significant family days. The court was tasked with creating a comprehensive set of orders that would govern the parents' future interactions and decision-making concerning B.

Cronin J reasoned that the mother should have sole parental responsibility for major long-term decisions, while both parents would share responsibility for day-to-day decisions when the child was in their care. The court established a detailed schedule for the child's time with the father, including provisions for school weeks and holidays, and stipulated communication protocols between the parents regarding decision-making. Notably, the court permitted the mother to remove the child from Australia after a specified date and ordered the removal of the child's name from the Airport Watch List. The court also clarified the father's entitlement to obtain information about the child's progress and health, subject to certain limitations. The Independent Children's Lawyer was discharged from the proceedings.

Orders

Orders of the court

That all parenting orders to date (and specifically paragraphs 9, 11 and 12 of the orders made on 14 August 2013) are discharged.

The Marshal and all officers of the Australian Federal Police and of the police forces of the states and territories are requested to remove the name of B born … 2009 from the Airport Watch List in force at all points of arrival and departure within the Commonwealth of Australia.

That the mother has sole parental responsibility for all major long-term parenting decisions relating to B born … 2009.

That save as to paragraph (3) of these orders, each parent has parental responsibility for decisions relating to the child when he is in their care.

Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:

(a) the nature of the decision to be made; and

(b) her views as to what should be done; and

That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.

That should the father fail to provide any information to the mother within the seven (7) day period as provided, the mother shall be entitled to make the decision without further consultation with the father.

Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the mother is at liberty to remove the child from the Commonwealth of Australia and to travel to a place outside of Australia after 1 July 2017 but not before that date.

That the child spend time with the father during weeks when the child is in school as follows:

(a) Until the first Thursday in February 2017, during each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday morning commencing on 13 May 2016;

(b) Until the second Wednesday in February 2017, on each alternate Wednesday from the conclusion of school until 7 pm commencing on 18 May 2016; and

(c) From the first Thursday in February 2017, during each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday morning.

10.

That the child spend time with the father during school holidays as follows:

(a) for one week of each term holidays by agreement and in default of agreement, the second week;

(b) for the long summer holidays in 2016/2017, on a week about basis on a date to commence by agreement and failing agreement commencing the second Saturday of the school holidays;

(c) for the long summer holidays in 2017/2018 and each year thereafter, for one half by agreement and failing agreement, the second half; and

(d) at Christmas, unless there is agreement otherwise, from 5.00pm on 24 December until 2.00pm on 25 December in each even numbered year and from 2.00pm on 25 December until 2.00pm on 26 December in each odd numbered year.

11.

That all school term time between the child and the father under these orders shall be suspended during school holiday periods and recommence thereafter as though the school holidays and the suspension had not occurred.

12.

That the father’s time with the child be suspended on Mother’s Day from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Mother’s Day and similarly, if the weekend of Father’s Day is not a weekend where the child would be with the father, then he spend time with the father from 5.00pm on the Saturday until the conclusion of school on the Monday morning after Father’s Day.

13.

That for the purposes of these orders, if the child cannot be collected at school and returned there, he be collected and returned by the father outside of the mother’s residence.

14.

Notwithstanding the mother has sole parental responsibility for the child, the father shall be entitled to:

(a) obtain information as to the child’ progress and participate in all school activities to which the parents of children would normally be involved PROVIDED ALWAYS that attendances at all school events shall be subject to any determination to the contrary by the principal of the child’ school;

(b) obtain information from and attend upon, any medical practitioner providing treatment for the child including any counselling, but always subject to the entitlement of such health professional to decline to provide such information; and

(c) be provided by the mother with details of any serious medical injury or illness sustained by the child when in the mother’s care.

15.

That the father be able to communicate with the child by telephone when he is not in his care on Tuesday in each week at 6.30 pm.

16.

That the mother be able to communicate with the child when he is not in her care on Tuesday in each week at 6.30 pm.

17.

That the Independent Children’s Lawyer is discharged from the proceedings.

18.

That all applications of the parties are otherwise dismissed.

19.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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