ELDRIDGE & ELDRIDGE (No.2) - [2019] FCCA 2280

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELDRIDGE & ELDRIDGE (No.2)

[2019] FCCA 2280

Catchwords:
FAMILY LAW – Parenting – relocation – family violence – children to live with the mother – mother permitted to remain within 300km of Sydney.

Legislation:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss.9, 10
Family Law Act1975, s.60CC

Cases cited:

Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode [2006] FamCA 1346

Applicant:

MR ELDRIDGE

Respondent:

MS ELDRIDGE

File Number:

TVC 229 of 2017

Judgment of:

Judge Boyle

Hearing dates:

26, 27 November 2019, 8 March 2019,
21 March 2019

Date of Last Submission:

21 March 2019

Delivered at:

Sydney

Delivered on:

19 August 2019

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Direct brief

Counsel for the Independent Children's Lawyer:

Ms Rebehy

Solicitors for the Independent Children's Lawyer:

Shedden & Associates

ORDERS

That all previous parenting orders in this matter be discharged.
That the mother shall have sole parental responsibility for the children X born in 2013, and Y born in 2014 (“the children”).
That the children live with the mother.
That the mother shall inform the father (by email or text message) at least fourteen (14) days before making:
(a)any proposed change in the children’s school or day care;
(b)any surgery or serious medical treatment the children are to undergo, other than emergency treatment; and
(c)any proposed change in residential address.
The parties shall keep each other advised of their residential address and mobile telephone number, and keep each other informed of any change to their respective contact details within forty eight (48) hours of any such change.
That the father may communicate directly with any school, pre-school or day care that the children may attend, and the mother shall authorise the school pre-school or day care to communicate with the father so that the school may provide to him, at his request, copies of the children’s school or pre-school reports, and school or equivalent photographs.
The mother shall not move the children’s residence outside of 300 kilometres from Kingsford Smith Airport, Sydney, without the father’s written consent.
The children shall spend time with, and communicate with, the father as follows:
(a)Each Sunday at 6pm by Skype, Facetime or similar, with the father to nominate the form of audio visual communication to the mother and initiate the call, and the mother shall make the children available to take the father’s call.
(b)For a period of between two (2) to six (6) hours, on one (1) day in each of the NSW school term holidays and one (1) day in each school term through an authorised Contact Centre as agreed, and failing agreement by B Contact Centre, Region C at D Street, Suburb E, NSW.
(c)That for the purpose of supervised time, within seven (7) days of these Orders the parties shall contact B Contact Centre, Region C and do all acts and things necessary to complete the intake required for use of…

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 ELDRIDGE & ELDRIDGE (No.2)

Details

AGLC: ELDRIDGE & ELDRIDGE (No.2) [2019] FCCA 2280
Case: [2019] FCCA 2280
Decision Date: 19 August 2019

CaseChat Overview and Summary

In the matter of ELDRIDGE & ELDRIDGE (No.2), Judge Boyle of the Family Court of Australia considered parenting orders concerning two children, X and Y. The dispute involved the mother's desire to relocate with the children and the father's concerns, particularly in the context of family violence.

The court was required to determine the primary caregiver for the children, whether the children should live with the mother, and the extent of the father's future involvement, including communication and time spent with the children. Crucially, the court also had to consider the implications of family violence on the parenting arrangements and establish appropriate geographical limitations for the mother's residence.

Judge Boyle ordered that previous parenting orders be discharged and that the mother have sole parental responsibility for the children, with the children to live with her. The court imposed specific conditions on the mother regarding notification of changes to the children's schooling, medical treatment, and residential address. The father was granted supervised time with the children, to be facilitated through a contact centre or an accredited private supervising service, with the father bearing the costs. The father was also ordered to refrain from alcohol or illicit drug consumption prior to and during his time with the children, and the mother was restricted to not exceeding the legal blood alcohol limit while the children were in her care. Furthermore, the mother was prohibited from moving the children more than 300 kilometres from Sydney Airport without the father's written consent, and both parties were restrained from denigrating each other in the children's presence.

Orders

Orders of the court

That all previous parenting orders in this matter be discharged.

That the mother shall have sole parental responsibility for the children X born in 2013, and Y born in 2014 (“the children”).

That the children live with the mother.

That the mother shall inform the father (by email or text message) at least fourteen (14) days before making:

(a) any proposed change in the children’s school or day care;

(b) any surgery or serious medical treatment the children are to undergo, other than emergency treatment; and

The parties shall keep each other advised of their residential address and mobile telephone number, and keep each other informed of any change to their respective contact details within forty eight (48) hours of any such change.

That the father may communicate directly with any school, pre-school or day care that the children may attend, and the mother shall authorise the school pre-school or day care to communicate with the father so that the school may provide to him, at his request, copies of the children’s school or pre-school reports, and school or equivalent photographs.

The mother shall not move the children’s residence outside of 300 kilometres from Kingsford Smith Airport, Sydney, without the father’s written consent.

The children shall spend time with, and communicate with, the father as follows:

(a) Each Sunday at 6pm by Skype, Facetime or similar, with the father to nominate the form of audio visual communication to the mother and initiate the call, and the mother shall make the children available to take the father’s call.

(b) For a period of between two (2) to six (6) hours, on one (1) day in each of the NSW school term holidays and one (1) day in each school term through an authorised Contact Centre as agreed, and failing agreement by B Contact Centre, Region C at D Street, Suburb E, NSW.

(c) That for the purpose of supervised time, within seven (7) days of these Orders the parties shall contact B Contact Centre, Region C and do all acts and things necessary to complete the intake required for use of the service.

(d) In the event the father wishes to use an accredited private supervising service, such as F Family Services, he shall provide the mother with two (2) month’s written notice of his intention to spend time with children using the private service, and the mother shall contact the supervising service within seven (7) days of receiving the notice and do all acts and things to enable the children’s time with the father to be supervised by such service.

(e) The father shall meet the costs of the Contact Centre or private supervising service.

(f) The father shall spend time with the children at such other times as may be agreed between the parties in writing.

The father shall not consume any alcohol or illicit drugs within twenty four (24) hours prior to spending time with the children or while the children are in his care.

10.

The mother shall not consume alcohol beyond the legally prescribed blood alcohol limit for driving a motor vehicle while the children are in her care.

11.

The mother shall ensure the children are not in the presence of any person who is under the influence of illicit drugs or under the influence of alcohol beyond the legally prescribed blood alcohol limit for driving a motor vehicle.

12.

The parties are restrained from denigrating the other in the presence or hearing the children, or discussing these proceedings with the children, or allowing any other person to do so.

13.

The parties shall ensure the children do not access mobile phones, computers or other devices that contain adult material and that any such content stored on mobile phones, computers or other devices is only able to be accessed by passwords or other protections which the children cannot open.

14.

The father is entitled to send to the children gifts, cards and photographs or videos by providing these to the mother’s residential address or electronically, and the mother shall ensure the children receive these items as long as they are appropriate, and encourage the children to respond to the father.

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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