EDMONDSON & SABLES - [2015] FCCA 3367

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONDSON & SABLES

[2015] FCCA 3367

Catchwords:
FAMILY LAW – Parenting – difficult contested parenting relationship between parties – Father and child share a hearing disability – best interests considerations – Father’s conduct in effect a constant wearing down of the Mother – parents unable to communicate effectively – Father using “time with” as a bartering tool – Father’s focus on “quantity” of time with child not “quality” – Father’s focus on “fairness” rather than child’s best interests and equation of the two – Father’s inability to understand or appreciate child’s needs and the adverse impact of the contest with the Mother impacting negatively on the child.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2)(a) & (b), 60CC(3)(a) – (m), 65DAA

In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113
SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340

Applicant:

MR EDMONDSON

Respondent:

MS SABLES

File Number:

PAC 457 of 2013

Judgment of:

Judge Neville

Hearing dates:

26, 27 March, 21 July 2015

Date of Last Submission:

2 September 2015

Delivered at:

Canberra

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Self represented

Counsel for the Respondent:

Mr G Stagg

Solicitors for the Respondent:

Legal Aid ACT

Solicitor/Advocate for the Independent Children's Lawyer:

Mr K Robinson

Solicitors for the Independent Children's Lawyer:

Robinson + McGuinness, Canberra

ORDERS

All previous parenting orders be discharged.
Subject to Order 3 (below) the parents shall have equal shared parental responsibility for the child, X (“X”), born (omitted) 2009.
The Mother shall have sole parental responsibility in relation to X’s health and medical matters; the Mother is required to keep the Father informed of all major decisions regarding X’s health, and is to retain X's Blue Book.
X shall live with the Mother.
The Mother is permitted to permanently relocate the residence of X to Canberra in the Australian Capital Territory.
X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-
Commencing Term 2, 2015
(a)For 3 weekends each ACT gazetted school term from 6:00pm Friday until 4:00pm Sunday, as agreed and failing agreement at the end of the second, fifth and eighth weeks of the school term;
(b)That where X’s time with his Father falls on a weekend including a Monday public holiday, the time provided in paragraph 4.a. hereof is extended to 4:00pm Monday;
(c)For one period of two nights each ACT gazetted school term as agreed and failing agreement on Wednesday and Thursday of the fifth week of the gazetted school term, with such time to be spent in the Canberra/(omitted) region;
(d)For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 6:00pm on the Friday following the conclusion of school to 4:00pm on the second Tuesday of the said school holiday period;
(e)For the first half of the school holiday period that…

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 EDMONDSON & SABLES

Details

AGLC: EDMONDSON & SABLES [2015] FCCA 3367
Case: [2015] FCCA 3367
Decision Date: 18 December 2015

CaseChat Overview and Summary

This case involved parenting orders concerning a child named X, born in 2009. The parties, Mr. Edmondson (Father) and Ms. Sables (Mother), sought to resolve disputes regarding their parental responsibilities, the child's residence, and time spent with each parent. The matter was heard by Judge Neville.

The primary legal issues before the court were whether to make an order for equal shared parental responsibility, the specific arrangements for the child's time with each parent during school terms and holidays, the location for changeovers, and whether the Mother should be required to disclose her residential address to the Father. The court also considered the Mother's request for sole parental responsibility concerning medical matters and her application to permanently relocate the child to Canberra.

The court discharged previous parenting orders and made new orders reflecting a balance of the parties' submissions and the evidence presented. It was determined that the parents would have equal shared parental responsibility, with the Mother having sole responsibility for health and medical matters, though she was required to keep the Father informed. The child was ordered to live with the Mother, who was permitted to permanently relocate with X to Canberra. The orders detailed specific arrangements for the child's time with the Father, including weekends, school holidays, and special occasions, aiming to facilitate a positive and predictable relationship while minimising travel. The court also mandated that both parents attend counselling programs and that childcare and school providers share information with both parents.

The court ordered that all previous parenting orders be discharged. The parents were granted equal shared parental responsibility for X, with the Mother having sole responsibility for X's health and medical matters, and X was to live with the Mother. The Mother was permitted to permanently relocate X to Canberra. Detailed provisions were made for X's time with the Father, including during school terms, holidays, and special occasions, and for communication between X and the non-resident parent. The court also included orders regarding overseas travel, passports, changeovers, and the mandatory attendance of both parents at counselling programs.

Orders

Orders of the court

All previous parenting orders be discharged.

Subject to Order 3 (below) the parents shall have equal shared parental responsibility for the child, X (“X”), born (omitted) 2009.

The Mother shall have sole parental responsibility in relation to X’s health and medical matters; the Mother is required to keep the Father informed of all major decisions regarding X’s health, and is to retain X's Blue Book.

X shall live with the Mother.

The Mother is permitted to permanently relocate the residence of X to Canberra in the Australian Capital Territory.

X shall spend time with the Father as agreed in writing, and failing such agreement as follows:-

Commencing Term 2, 2015

(a) For 3 weekends each ACT gazetted school term from 6:00pm Friday until 4:00pm Sunday, as agreed and failing agreement at the end of the second, fifth and eighth weeks of the school term;

(b) That where X’s time with his Father falls on a weekend including a Monday public holiday, the time provided in paragraph 4.a. hereof is extended to 4:00pm Monday;

(c) For one period of two nights each ACT gazetted school term as agreed and failing agreement on Wednesday and Thursday of the fifth week of the gazetted school term, with such time to be spent in the Canberra/(omitted) region;

(d) For twelve days in each of the school holiday periods that fall at the end of terms 1 and 3 of the ACT gazetted school holidays from 6:00pm on the Friday following the conclusion of school to 4:00pm on the second Tuesday of the said school holiday period;

(e) For the first half of the school holiday period that falls at the end of term 2 from 6:00pm on the Friday following the conclusion of school to 4:00pm on the middle Saturday of the school holiday period;

(f) For half of the Christmas school holiday period on a one week: one week: two week: two week: cycle with the first and third periods in odd numbered years and second and fourth periods in even numbered years;

(g) For the purpose of these Orders the school holiday periods are deemed to commence at 6:00pm on the last day of school and to conclude at 4:00pm on the Sunday prior to the resumption of school in the following term;

Special Occasions

Notwithstanding any other Order herein, X shall spend time with his parents over Christmas as follows:

(a) From 5:00pm on Christmas Eve to 5:00pm on Christmas Day with the Father in odd numbered years commencing in 2015

(b) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Mother in odd numbered years commencing in 2015

(d) From 5:00pm on Christmas Day to 5:00pm on Boxing Day with the Father in even numbered years commencing 2016.

Changeover

Unless agreed between the parties in writing, changeover shall occur at the McDonalds Restaurant at (omitted).

Overseas Travel/Passport

X be permitted to travel outside of the Commonwealth of Australia subject to:

(a) The parent proposing such travel providing the other parent with 8 weeks’ notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;

(b) Not less than 14 days prior to departure, the parent proposing travel providing a copy of X’s tickets, and confirmation of the addresses where he shall be staying during the period of travel together with an email address and telephone number at which the parent and X may be contacted by the other parent;

10.

Each party shall do all things and sign all documents necessary to provide their consent to X obtaining an Australian Passport and/or renewing his Australian Passport within 14 days of receipt of a request from the other parent to do so;

11.

X’s passport shall be held by the Mother; if X is travelling overseas with the Father in accordance with these orders, the Mother shall deliver X’s passport to the Father not less than four weeks prior to the date of the intended departure, and the Father shall return X’s passport to the Mother within 72 hours of return from any overseas trip.

Communication

12.

During periods where X is living with either parent, the parent with whom X is not currently with be at liberty to communicate with X by telephone and/or Skype each Tuesday and Thursday between 6:00pm and 7:00pm and the other parent is to facilitate the call.

13.

Notwithstanding Order 12, if X expresses a wish to telephone the other parent at a reasonable time, the parent with whom X is currently spending time shall assist X to telephone the other parent.

14.

On X’s birthday and each of the Father and Mother’s birthdays, the non resident parent shall be at liberty to communicate with X by telephone and/or Skype between 6:00pm and 7:00pm and the other parent is to facilitate the call.

15.

Each parent shall advise the other as soon as reasonably practical of:

(a) Any significant illness, accidents or injury suffered by X;

(b) Any significant medical or dental treatment provided to X;

(d) This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to either parent.

16.

X’s childcare, school, vacation care, and other providers are authorised to provide all information and documents about X to both parents, including but not limited to X’s progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.

17.

Both parents may attend any school or extracurricular or sporting activity to which parents are normally invited.

18.

The Mother and Father are both required to separately attend and complete the Assisting Responsible Care for Kids (ARCK) program for counselling at Marymead in (omitted), ACT (or a similar course interstate) and proof of completion of this program must be provided to the Independent Children’s Lawyer.

19.

X is to attend and complete counselling as organised by the Kids and Youth are Kool post-Separation (KAYAKS) program at Marymead, for as long as the KAYAKS program considers reasonably necessary.

Should the Father relocate to Canberra/(omitted) region

20.

In the event the Father relocates to the Canberra/(omitted) region, X shall live with the Mother and spend time with the Father as follows:-

(a) From after school Friday until before school Tuesday each alternate weekend and for half of each school holiday period and being the first half in odd numbered years and the second half in even numbered years;

(b) On special occasions in accordance with paragraph 7 and 14 hereof.

21.

Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

22.

Pursuant to s.65DA(2) of the Family Law Act, 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, attached hereto and these particulars are included in these orders.

THE COURT NOTES THAT:

A. The parties must arrive on time for changeover.

B. All X’s medical equipment (including glasses and hearing aids), school supplies and school clothes provided with X at handover for time in accordance with orders 6 and 7 shall be returned at the conclusion of such time.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The ICL’s submissions I also incorporate in [almost] their entirety. I have highlighted (in bold) parts of them because of their significance, and/or because they are matters with which I agree, and rather than repeat them (in addition to comments already made), they should relevantly be taken as formal findings of the Court, particularly in relation to the legislative pathway. In making such statements, I am cognisant of the Full Court’s comments in SCVG v KLD regarding the manner in which a hearing at first instance is or may be conducted, the identification of relevant issues in the matter at hand, and the way in which the Court approaches the so-called “legislative pathway” in the course of the Court’s “consideration” of the issues in each particular matter.[48] Thus,[48] See SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 at [71] – [76] & [87] – [89].1) At the conclusion of the third day of hearing and in anticipation of each party making oral submissions, it emerged that the Father had not prepared submissions in response to the legislative framework contained in section 60CC of the Family Law Act 1975. Directions were made for the filing of submissions by each of the parties and the Independent Children’s Lawyer (ICL). The ICL has sought and been granted further extensions for the filing of these submissions for which gratitude is extended to the Court and the parties.2) There is no dispute that X shall remain living primarily with his Mother. The Father concedes in his Minute of Orders Sought that the Mother be permitted to permanently relocate the residence of X to Canberra from Sydney. The Father seeks an arrangement whereby X spends time with him each alternate weekend during school terms (3 occasions in Sydney and 2 occasions in Canberra), for extended periods in the term 1 and 3 school holiday periods and for half of the term 2 and Christmas holiday periods.3) The Mother in her written submissions has adopted the Minute of Orders Sought handed up by the ICL at the commencement of the hearing with some variations: that any additional time X spends with the Father during school terms be specified; that the Mother not be required to provide her residential address to the Father; and that the Mother have sole parental responsibility in relation to medical matters.4) At the commencement of the hearing on 26 March 2015 the ICL handed up a Minute of Orders Sought. Many of the orders were not contentious and were made by consent and are reflected in the Orders made by the Court on 27 March 2015. The issues remaining in dispute, and the subject of the three days of hearing were: (a) Whether an order for equal shared parental responsibility should be made; (b) The frequency of time X should spend with the Father during school terms and school holiday periods; (c) Where change-over should occur; and (d) Whether the Mother should be required to provide her residential address to the Father.Evidence presented at the Final HearingMr Edmondson - Father5) The Father gave evidence consistent with his affidavit material. The Father was cross-examined by both Counsel for the Mother and the ICL. The Father gave evidence in a straightforward matter consistent with his Affidavit material. It is submitted the Father’s evidence was characterised by a somewhat “fixed” view of past events. The Father places the blame for difficulties in communication at the feet of the Mother. The Father only reluctantly made concessions that past events were capable of a different interpretation by other parties present. The Father’s approach to the parenting arrangements for X is determined by his assessment of what is “fair” and he is somewhat dogmatic in his reliance of this assessment.This is then reflected in his determination that all time X spends with him is strictly in compliance with any orders, and he exercises what he regards as his right to retain X for an equivalent period to make up this time if delivered late. On one occasion, the Father retained X to make up time notwithstanding he was aware X and the Mother were to attend a family wedding and that such retention may cause them to be late. The Father conceded in cross-examination that this may have been “ungracious” on his part.6) It was evident throughout the Father’s evidence that he has a very loving relationship with X and wants to act in his best interests. The Father made an appropriate concession at the commencement of the hearing not to press the issue of relocation and to consent to X’s permanent relocation to Canberra. The Father regards X’s best interests as being in accordance with his view of those interests.7) The Father was cross-examined in relation to his retention of X's Blue Book and gave evidence to the effect that this was available to the Mother in exchange for X’s passport. Ultimately the Father conceded that he should have returned this to the Mother sooner as she is the primary carer of X and may have required it to attend medical appointments.Other witnesses for Father8) Affidavits from the Father’s partner and Mother (Paternal Grandmother) were also filed in support of the Father’s case. Neither were required for cross-examination.Ms Sables – Mother9) The Mother gave evidence broadly consistent with her affidavit material. The Mother’s case is that the Father is obstructive and intimidating in his interactions with her and that she feels anxious when dealing with him. The Mother, similarly to the Father, has a particular view of past events and views them through a prism of the Father deliberately making interactions and communication more difficult for her as a form of intimidation. 10) The Mother gave evidence that communication with the Father is often or always difficult, suggesting that the Father never says in answer to a request “Yes, that is fine”, but rather uses the request as an invitation to negotiate around other issues. The Mother asserted that there have been occasions when she believes the Father intended that she feel scared. In answer to a question from His Honour the Mother gave evidence that “I think he [the Father] uses the Court Orders to control me rather than for X” and “When we disagree it is never about X, it is about him”.Dr G – Family Consultant11) Dr G gave evidence in line with the Family Report prepared by her and released to the parties on 18 December 2014. Dr G’s oral evidence supported the findings and conclusions contained in the Family Report.12) Dr G had been provided with copies of the affidavit material filed by the parties, the Case Outlines and Minutes of Orders Sought. Dr G expressed some surprise that the matter had not resolved as she had understood at the time of the preparation of the report that the parties were close to resolution. Several themes emerged in Dr G’s evidence: the parties need to reflect on their communication; quantity does not equal quality; the Orders to be made by the Court need to allow a positive, regular, predictable and quality relationship for X with both parents; X’s best interests are met by less travel; and X’s best interests are supported by his involvement in life in Canberra through school, sporting and other extra-curricular activities (e.g. birthday parties for school friends).13) Dr G recommended that X spend time with the Father once per month in Sydney and once per month in Canberra.Legislative pathway14) 60CC(2)(a) and 60CC(2)(b) – It is submitted that the evidence establishes that X has a close and loving relationship with both parents. The Orders as proposed by the ICL permit that relationship to be maintained.15) The Mother seeks to characterise the breakdown in communication between the parties as a form of psychological abuse on the part of the Father. Whilst such a submission may be beguiling, the totality of the evidence, it is submitted, demonstrates that both parents must bear responsibility for the breakdown in communication. The Father needs to reflect on the impact of his communication style on the Mother. The Mother needs to reflect on her sensitivity to anything that may be said by the Father. Both parents have much to do to accept that there may be merit in something the other says. The conclusion of the present proceedings may provide a circuit breaker for the parents to address future communication with the common purpose of the best interests of X.16) 60CC(3)(a): Dr G describes X as a “delightful, sociable little boy” [Family Report # 31]. X is of an age where his views are of limited weight in resolving the present proceedings. 17) 60CC(3)(b): X’s interactions with each of them during the Family Report process demonstrate the closeness and security of these relationships [Family Report # 31– 38].18) 60CC(3)(c): The evidence establishes that both parents have been involved in decision-making for X, albeit there have been several occasions where a request in relation to one issue has been conflated to involve a range of other, often unrelated, issues.19) 60CC(3)(ca): The Mother asserts that the Father has failed on occasion to provide funds (swimming lessons), however overall there is limited evidence to suggest the Father has not and will not meet any financial obligations. The delay in the Father providing the Blue Book is concerning.20) 60CC(3)(d): As a result of the present proceedings some change to the arrangements is likely, however this will involve frequency and a reduction in the amount of travel being undertaken by X.21) 60CC(3)(e): The Father resides in the eastern suburbs of Sydney and the Mother in Canberra. Travel is a real issue for both parents and various issues have been put forward. In the absence of agreement it is submitted changeovers should take place at a mid-point between Sydney and Canberra as proposed by the ICL. Such an order does not prevent the parties from subsequently agreeing to some other arrangement.22) 60CC(3)(f): Both parents have the capacity to meet X’s needs. Both parents would benefit from sober reflection on their communication and the impact this has on X.23) 60CC(3)(g): There are no specific matters under this heading that will assist the court.24) 60CC(3)(h: Not applicable.25) 60CC(3)(i): Both parents have a loving attitude towards the child. It is submitted the Father, by his reticence to make concessions that may favour the Mother, and his apparent equivalence of “quantity equals quality”, exposes himself to a conclusion that he places his own interests ahead of X’s. 26) 60CC(3)(j) and 60CC(3)(k): There are no extant family violence orders. The Mother asserts psychological violence, however it is submitted the evidence falls short of that required to make a positive finding in this respect. It is submitted the evidence also falls short of supporting an order that the Mother not be required to provide her residential address.27) 60CC(3)(l): It is not known whether the Orders proposed will be least likely to result in further proceedings. The impact of travel arrangements may have some bearing on this.28) 60CC(3)(m): There is insufficient evidence to support any form of Order in the event of the Father relocating to Canberra. It is not clear whether the Father has formed a settled position or timeframe for such a move.Parental responsibility 29) The Father’s failure to provide the Blue Book is relied upon by the Mother to support an order in favour of the Mother for sole parental responsibility in relation to medical matters. It is submitted that the history around the delay in X attending the auditory appointment, particularly in circumstances where the Father himself has an auditory deficit, is not solely at the hands of the Father and from which the Mother can claim exculpation. The Mother now has possession of X's Blue Book.30) It is submitted the presumption in favour of an order for equal shared parental responsibility has not been rebutted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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