DUNBAR & PACKARD - [2013] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNBAR & PACKARD

[2013] FCCA 2390

Catchwords:
FAMILY LAW – Parenting – where mother had unilaterally relocated child’s residence to Adelaide – where interim order had been made for child’s return to (omitted) – best interests – where mother’s application refused – child to remain living on (omitted).

FAMILY LAW – Costs – where ICL seeks father pay one half of costs based on his financial circumstances – where order for costs made.

Legislation:

Family Law Act 1975, ss.60CC, 65DA, 117

MRR & GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346
Cowley & Mendoza [2010] FamCA 597
Collu & Rinaldo [2010] FamCAFC 53
Heath & Hemming (No.2) [2011] FamCA 749
Telfer & Telfer (1996) FLC 92-688
Re David (No.2) Re Costs (1998) FLC 92-809

Applicant:

MR DUNBAR

Respondent:

MS PACKARD

File Number:

BRC 7200 of 2012

Judgment of:

Judge Purdon-Sully

Hearing dates:

9 & 17 December 2013

Date of Last Submission:

17 December 2013

Delivered at:

Brisbane

Delivered on:

17 December 2013

REPRESENTATION

Solicitors for the Applicant:

Self represented

Solicitors for the Respondent:

Self represented

Counsel for the Independent Children’s Lawyer:

Ms C Dart

Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That all previous orders and parenting plans be discharged.
That the child, X born (omitted) 2003 (“the child”) live with the mother.
That the parents have equal shared parental responsibility for the major long term issues of the child.
That the parents are to consult with each other about long term decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's school; relocating the residence of the child so that existing parenting arrangement become impracticable; or a significant medical intervention for the child.
That except in the event of an emergency, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility on the following basis:
(a)The parent proposing to make a decision (“originating parent”) will give the other parent details of the decision that needs to be made, what decision they propose to make and the reasons why they propose the decision be made in a particular way;
(b)The other parent will respond to the originating parent, if they wish to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)The originating parent will consider any feedback given by the other parent by reference to the best interests of the child; and
(d)If the parents are not able to come to a joint decision, they shall participate in family dispute resolution as soon as practicable thereafter, with the originating parent to initiate such process within seven (7) days by nominating a panel of three (3) possible family dispute resolution practitioners (“FDRP”). If the other parent fails to choose…

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 DUNBAR & PACKARD

Details

AGLC: DUNBAR & PACKARD [2013] FCCA 2390
Case: [2013] FCCA 2390
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case involved a dispute between a mother and father concerning their child, X. The mother had unilaterally relocated the child to Adelaide, contrary to an interim order for the child's return to the father's location. The court was required to determine the parenting arrangements for the child, considering the child's best interests, and also to make orders regarding costs.

The primary legal issue before the court was to establish final parenting orders that would best serve the interests of the child, X. This involved determining with whom the child would live, the nature of parental responsibility, and the specific arrangements for the child's time with each parent, including during school holidays and on special occasions. The court also had to consider the application for costs made by the Independent Children's Lawyer (ICL).

Purdon-Sully J discharged all previous orders and parenting plans. The court ordered that the child, X, live with the mother and that the parents have equal shared parental responsibility for major long-term issues. Detailed provisions were made for consultation and decision-making regarding significant issues, including relocation and medical interventions, with a requirement for family dispute resolution if agreement could not be reached. The orders also stipulated specific arrangements for the child's time with the father, including alternate weekends and a division of school holidays, along with provisions for communication, changeovers, health, and schooling. The father was ordered to pay $3,825.50 towards the costs of the Independent Children's Lawyer.

Orders

Orders of the court

That all previous orders and parenting plans be discharged.

That the child, X born (omitted) 2003 (“the child”) live with the mother.

That the parents have equal shared parental responsibility for the major long term issues of the child.

That the parents are to consult with each other about long term decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's school; relocating the residence of the child so that existing parenting arrangement become impracticable; or a significant medical intervention for the child.

That except in the event of an emergency, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility on the following basis:

(a) The parent proposing to make a decision (“originating parent”) will give the other parent details of the decision that needs to be made, what decision they propose to make and the reasons why they propose the decision be made in a particular way;

(b) The other parent will respond to the originating parent, if they wish to suggest any variation or alternative proposal within seven (7) days of receiving notice;

(c) The originating parent will consider any feedback given by the other parent by reference to the best interests of the child; and

(d) If the parents are not able to come to a joint decision, they shall participate in family dispute resolution as soon as practicable thereafter, with the originating parent to initiate such process within seven (7) days by nominating a panel of three (3) possible family dispute resolution practitioners (“FDRP”). If the other parent fails to choose one (1) FDRP within seven (7) days, the originating parent may choose one.

That the child spend time with the father at all times as may be agreed between the parties, but failing agreement, each alternate weekend from 4.00pm Friday until 4.00pm Sunday.

That the child live with the mother and the father for school holiday periods as follows:

(a) The first half of the gazetted Queensland school holidays in even numbered years with the mother and in odd numbered years with the father; and

(b) The second half of the gazetted Queensland school holidays in odd numbered years with the mother and in even numbered years with the father.

That for the purposes of these Orders, school holiday time shall commence:

(a) when the child’s time with a parent falls in the first half of the holidays from 10.00am on the day after school term finishes and concludes at 5.00pm on the day calculated to be half of the holidays;

(b) when the child’s time with a parent falls in the second half of the holidays from 5.00pm on the day calculated to be half of the holidays when spending time shall end at 5.00pm on the day before the school term recommences;

(c) school holidays shall be deemed to commence at 10.00am on the day after the school term finishes and concludes at 5.00pm on the day before the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.

Special days

That the parent whom the child spends time with in the second half of the Christmas school holiday period shall have the child in their care from 5.00pm Christmas Eve until 12.00pm Christmas Day.

10.

That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:

(a) On the child’s birthday with the parent he is not already living with on that day:

(i) If a school day, from after school until 7.00pm;

(ii) If a non-school day, from 12.00pm until 5.00pm;

(iii) With that parent to be responsible to collect and return the child.

(b) With the father on Father’s Day weekend from 4.00pm Friday until 4.00pm Sunday and if that is a weekend that the father would not ordinarily have the child in his care, then the father shall forego the next weekend of time;

(c) With the mother on Mother’s Day weekend from 4.00pm Friday until 4.00pm Sunday and if that is a weekend that the mother would not ordinarily have the child in her care, then the mother shall forego the next weekend of time.

11.

That the child shall communicate with the mother when he is with the father during school holidays each Tuesday and Thursday at 7.00pm, with the mother to initiate the telephone call.

12.

That otherwise, the child shall communicate with the father at times that are agreed between the parents and failing agreement as follows:

(a) By telephone between 7.00pm and 7.30pm on each Tuesday, with the father to initiate the call;

(b) By webcam or Skype at least once a fortnight at a time suitable to the child;

(d) By regular mail.

13.

That the child be permitted to call the parent he is not living with at all reasonable times and the parent whom he is with shall assist him to make any calls he requests.

14.

That when the child is communicating with the other parent each parent shall:

(a) ensure that the child is available to receive the telephone call;

(b) arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and

15.

That should either parent be unable to care for the child as is provided for in these Orders, or as may otherwise be agreed between the parties, that parent be responsible for making the appropriate alternate arrangements for the child to be cared for.

16.

That in the event that the child is scheduled to live with or spend time with a parent and that parent is unavailable to care for the child (for example due to work or other unforseen commitments), it is the responsibility of the parent who is scheduled to have care of the child to make appropriate arrangements for the care of the child during the period of their unavailability.

17.

That neither party is to denigrate or insult the other party or their family in the presence or hearing of the child and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the child and shall remove the child from any environment where same is occurring.

Changeovers

18.

That changeovers for the purposes of the child’s time with the father shall occur as follows:

(a) Changeovers before and after school shall occur at the child’s school and shall include any after school hours care that the child attends and/or extra curricular activities that the child may attend;

(b) All other changeovers at the (omitted) service station.

Health and schooling

19.

That the child continue to be enrolled with and attend (omitted) Primary School.

20.

That the parties share equally the costs of any additional school expenses for the child, including but not limited to school uniforms, school books, camps and excursions.

21.

That father be forthwith listed as a parent and emergency contact with any school and/or any other care provider for the child.

22.

That the parties shall keep the other informed of any school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and the option to purchase school photographs and this order shall serve as such authority.

23.

That the parents shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.

24.

That each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent.

Parenting orders program

25.

That within twenty eight (28) days of the date of these Orders the mother and the father complete a Parenting Orders Program with Relationships Australia (telephone (omitted)) or Foundations (telephone (omitted)) or such other organisation that offers a similar program.

26.

That the mother and the father provide to each other their certificate of completion within seven (7) days of receiving same from the parenting orders program provider.

Other

27.

That by way of contribution to the legal costs of and disbursements incurred by the Independent Children’s Lawyer, the father pay the sum of $3,825.50 to Legal Aid Queensland by no later than 4.00pm on 17 June 2014.

28.

That the Independent Children’s Lawyer be discharged.

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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