DRAPER & ROILAND - [2017] FamCA 636

FAMILY COURT OF AUSTRALIA

DRAPER & ROILAND

[2017] FamCA 636

FAMILY LAW – CHILDREN – With whom the children live – Where the children live with the mother and the father proposed reversal of the children’s residence – Where the children have meaningful relationships with both parents – Whether the children are able to derive a full measure of benefit from both filial relationships while they live with the mother – Where the father will promote the children’s relationships with the mother – Where the modest success of interim orders suggests it is unnecessary to take the drastic step of reversing the children’s residence – Where the mother vigilantly attends to the children’s medical needs, the mother’s financial circumstances are at least equal to the father’s, and it would be beneficial for the children to live with their half-sibling – Ordered the children live with the mother

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties cannot share parental responsibility – Where the parties do not trust each other – Where the mother has stopped speaking with the father altogether – Concluded sole parental responsibility should vest in the parent with whom the children live – Ordered the mother have sole parental responsibility

Births, Deaths and Marriages Registration Act 1996 (Vic)
Child Support (Assessment) Act 1989 (Cth)

Family Law Act1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P

Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Newlands v Newlands (2007) 37 Fam LR 103
Re David (1997) 22 Fam LR 489
Reynolds & Sherman [2015] FamCAFC 128

APPLICANT:

Mr Draper

RESPONDENT:

Ms Roiland

INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

FILE NUMBER:

DGC

1915

2015

DATE DELIVERED:

22 August 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Melbourne

JUDGMENT OF:

Austin J

HEARING DATE:

1, 2 & 3 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Phelan

SOLICITOR FOR THE APPLICANT:

Wakefield Vogrig & Boote Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Southey

SOLICITOR FOR THE RESPONDENT:

Aitken Partners Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

All former orders under Part VII of the Family Law Act in respect of the following children are discharged:
(a)B, born … 2008;
(b)C, born … 2010;
(c)D, born … 2011; and
(d)E, born … 2013.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The parties shall forthwith take all reasonable steps to ensure that the Register of Births, Deaths and Marriages kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic) is amended so as to:
(a)Disclose the father’s paternity of the youngest child (if not already recorded);
(b)Change the youngest child’s surname from “Roiland” to “Draper”; and
(c)Ensure…

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 DRAPER & ROILAND

Details

AGLC: DRAPER & ROILAND [2017] FamCA 636
Case: [2017] FamCA 636
Decision Date: 22 August 2017

CaseChat Overview and Summary

In the matter of *Draper & Roiland*, Austin J of the Family Court of Australia considered a dispute concerning the residence and parental responsibility of four children. The father sought a reversal of the children's residence from the mother to himself, while the mother sought orders for the children to live with her and for her to have sole parental responsibility. The court was required to determine with whom the children should live, whether they could derive a full measure of benefit from their relationships with both parents if they lived with the mother, and whether sole parental responsibility should vest in one parent given the parties' inability to share responsibility and their mutual distrust.

The court reasoned that the modest success of interim orders suggested that a drastic step like reversing the children's residence was unnecessary. It found that the mother vigilantly attended to the children's medical needs, her financial circumstances were at least equal to the father's, and it would be beneficial for the children to live with their half-sibling. Furthermore, the court was satisfied that the father would promote the children's relationships with the mother. Given the parties' inability to share parental responsibility and their lack of trust, the court concluded that sole parental responsibility should vest in the parent with whom the children live.

Consequently, the court ordered that the children live with the mother and that the mother have sole parental responsibility for decisions regarding major long-term issues. The court also made detailed orders regarding the children's time with the father, communication between the children and each parent, and various other matters aimed at ensuring the children's welfare, including orders relating to the youngest child's surname and paternity registration. The court also addressed potential inconsistencies with an existing intervention order, clarifying that the Family Law Act parenting orders would prevail to the extent of any inconsistency.

Orders

Orders of the court

All former orders under Part VII of the Family Law Act in respect of the following children are discharged:

(a) B, born … 2008;

(b) C, born … 2010;

(d) E, born … 2013.

The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

The parties shall forthwith take all reasonable steps to ensure that the Register of Births, Deaths and Marriages kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic) is amended so as to:

(a) Disclose the father’s paternity of the youngest child (if not already recorded);

(b) Change the youngest child’s surname from “Roiland” to “Draper”; and

The parties are at liberty to provide a sealed copy of these orders to the Registrar appointed under the Births, Deaths and Marriages Registration Act 1996 (Vic).

The parties are restrained from causing or permitting the youngest child to be known by any surname other than “Draper”.

The children shall live with the mother.

The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

(a) Whilst ever the father lives more than 150 kilometres from the mother and children:

(i) During school terms, from 5.00 pm Friday until 5.00 pm Sunday each third weekend, commencing on the third Friday of each school term;

(ii) For the first week of the Autumn, Winter, and Spring school holidays; and

(iii) During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

(b) Whilst ever the father lives within 150 kilometres of the mother and children:

(i) During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each school term;

(ii) For the first week of the Autumn, Winter, and Spring school holidays; and

Order 7 hereof is suspended during the following periods:

(a) From 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day each year, during which period the children will spend time with the mother in odd numbered years and with the father in even numbered years; and

(b) From 5.00 pm Friday until 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on Mother’s Day weekends and with the father on Father’s Day weekends.

For the purpose of implementation of Orders 7 and 8 hereof:

(a) In respect of the operation of Order 7(a)(i), the mother (or her nominee) shall deliver the children to the father (or his nominee) at the McDonalds Restaurant nearest to the mid-point between their residences (which is presently the McDonalds Restaurant at F Town, Victoria) at the commencement of the children’s time with the father;

(b) Otherwise, the mother (or her nominee) shall deliver the children to the father (or his nominee) at the nearest McDonalds Restaurant to the father’s home at the commencement of the children’s time with the father;

(c) The father (or his nominee) shall deliver the children to the mother (or her nominee) at the nearest McDonalds Restaurant to the mother’s home at the conclusion of the children’s time with the father;

(d) All school holidays are deemed to commence at 5.00 pm on the last day of school term;

(e) The first week of the Autumn, Winter, and Spring school holidays ends at 5.00 pm on the second Saturday after the holidays commence;

(f) The weekly rotations in the Summer school holidays are measured in increments of seven consecutive days; and

(g) The last rotation in the Summer school holidays ends at 5.00 pm on the last day preceding the day upon which the children are due to return to school, regardless of whether it is a full week.

10.

The parties shall take all reasonable steps to ensure the children communicate privately by Facetime with:

(a) The father each Wednesday at 6.00 pm, when the children are living with the mother, and for that purpose the father shall contact the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time;

(b) The mother each Wednesday at 6.00 pm, when the children are spending time with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time; and

(c) The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the parent with whom the children are not staying shall telephone them on the telephone number provided by the other parent for that purpose and the parent with whom they are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.

11.

The father is restrained from consuming alcohol for the period of 12 hours before and during any period in which the children spend time with him.

12.

The father shall comply with any and all instructions issued to him in writing by the mother about the children’s treatment for any diagnosed medical conditions.

13.

Each party is restrained from allowing any of the children to remain in any car, house, or other confined space in the presence of any person who is smoking.

14.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

15.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

16.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

17.

The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

18.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

19.

In the event of either party notifying the police or a prescribed child welfare authority that the children, or any of them, has been or is the subject of actual or potential abuse the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

(a) A copy of these orders;

(b) A copy of these reasons for judgment; and

20.

By reason of an inconsistency between some of these Orders and an existing Intervention Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the Melbourne registry of the Family Court of Australia shall send a sealed copy of these Orders to:

(a) The Registrar of the Magistrate’s Court at Suburb G, Victoria;

(b) The Commissioner of the Victorian Police Service; and

21.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

22.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

23.

Costs in respect of applications under Part VII of the Family Law Act are reserved for 28 days.

24.

Any and all other outstanding applications under Part VII of the Family Law Act are dismissed.

Notation

(A) Orders 7, 8, 9, 10, 16, and 18 hereof are inconsistent with paragraphs 5, 6, and 7 of the Intervention Order made against the father in favour of the mother and the children by the Magistrate’s Court at Suburb G, Victoria on 20 January 2016, in which case Division 11 of Part VII of the Family Law Act applies and the parenting orders prevail to the extent of any inconsistency.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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