Esser and Backer - [2019] FCCA 3473

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESSER & BACKER

[2019] FCCA 3473

Catchwords:
FAMILY LAW – Parenting – where there are two children of the relationship – where the mother has relocated interstate – where the children have resided in Victoria their entire life – whether the mother be permitted to relocate the children's residence interstate – where there are no allegations of risk of harm in either parents care.

Legislation:

Family Law Act 1975 (Cth), pt.VII, ss.60CC, 61DA, 65DAA

Cases cited:

A & A (Relocation Approach) [2000] FamCA 751

Cowley & Mendoza [2010] FamCA 597

Hepburn & Nobel (2010) FLC 93-438
MRR & GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115

Applicant:

MS ESSER

Respondent:

MR BACKER

File Number:

DGC 2959 of 2013

Judgment of:

Judge Middleton

Hearing dates:

25 & 26 July 2019

Date of Last Submission:

7 August 2019

Delivered at:

Brisbane

Delivered on:

29 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Agresta

Solicitors for the Applicant:

Stephen Peter Byrne Lawyer

Counsel for the Respondent:

Ms Howe

Solicitors for the Respondent:

Guthrie and Associates

ORDERS

That all previous orders be discharged.
That the parties have equal shared parental responsibility for the children namely [X] born … 2007 and [Y] born … 2008 (“the children”).
That the children live with the father in Victoria.
That the children spend time with the mother as follows:
(a)During each school term holiday as agreed and failing agreement commencing at 10:00am on the first Saturday of the holidays and concluding at 5:00pm, 10 days later;
(b)During the long summer holidays as agreed and failing agreement:
(i)In 2019 and odd years thereafter, from 10:00am on 23 December to 5:00pm on 9 January; and
(ii)In 2020 and even years thereafter, from 10:00am on 9 January to 5:00pm on 26 January.
(iii)Such other times as agreed.
(c)On each of the children’s birthdays at times to be agreed between the parties, and failing agreement, the parent who is not spending time with the child on their birthday pursuant to these orders shall spend time between 5:00pm and 6:00pm via Skype.
(d)That the Respondent father spend time with the children on Father's Day weekend each year.
(e)That the applicant mother spend time with the children on Mother's Day weekend of each year.
For the purposes of the children's travel to allow their time with the mother in the Northern Territory:
(a)The Mother to do all such things as may be required to purchase a return airfare for the children not less than 30 days prior to their proposed departure dates from Melbourne with the father to reimburse the mother for 50% of such fare within 60 days of the purchase.
(b)That the parties do all things necessary to ensure that the children, travel as an unaccompanied minor on all flights until such age that they are deemed suitable not to travel as an unaccompanied minor.
That changeover is to take place with the father delivering and collecting the children at Melbourne Tullamarine Airport and the…

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 Esser and Backer

Details

AGLC: Esser and Backer [2019] FCCA 3473
Case: [2019] FCCA 3473
Decision Date: 29 November 2019

CaseChat Overview and Summary

This matter concerned orders made by Judge Middleton regarding the parental responsibility and living arrangements for two children, [X] and [Y]. The dispute centred on the arrangements for the children's time with each parent, including travel, communication, and the sharing of information concerning their welfare.

The court was required to determine the specific orders concerning equal shared parental responsibility, the primary residence of the children, and the detailed arrangements for the children to spend time with each parent. Further issues included the practicalities of travel between the Northern Territory and Victoria, communication protocols between the parents, and the exchange of information regarding the children's health and education. The court also had to consider provisions for interstate and overseas travel and the management of the children's passports.

The court made orders establishing equal shared parental responsibility for the children. The children were ordered to live with the father in Victoria, with specific provisions for the mother to spend time with them during school holidays, long summer holidays, and on birthdays. The orders also detailed arrangements for travel, including the mother's responsibility for purchasing airfares and the children travelling as unaccompanied minors, with cost-sharing for flights. Communication between parents and children was to occur via scheduled calls and at the children's discretion, with a strict protocol for email correspondence for all other matters, except in emergencies. Both parents were to be kept informed of the children's health and welfare, and provisions were made for interstate and overseas travel, requiring written consent and advance notification, along with equal sharing of passport-related costs.

In addition to these primary orders, the court included a set of alternative orders that would apply if the mother returned to Victoria. These alternative orders also provided for equal shared parental responsibility but stipulated a week-about living arrangement for the children between both parents, with similar provisions for communication, birthdays, and travel.

Orders

Orders of the court

That all previous orders be discharged.

That the parties have equal shared parental responsibility for the children namely [X] born … 2007 and [Y] born … 2008 (“the children”).

That the children live with the father in Victoria.

That the children spend time with the mother as follows:

(a) During each school term holiday as agreed and failing agreement commencing at 10:00am on the first Saturday of the holidays and concluding at 5:00pm, 10 days later;

(b) During the long summer holidays as agreed and failing agreement:

(i) In 2019 and odd years thereafter, from 10:00am on 23 December to 5:00pm on 9 January; and

(ii) In 2020 and even years thereafter, from 10:00am on 9 January to 5:00pm on 26 January.

(iii) Such other times as agreed.

(c) On each of the children’s birthdays at times to be agreed between the parties, and failing agreement, the parent who is not spending time with the child on their birthday pursuant to these orders shall spend time between 5:00pm and 6:00pm via Skype.

(d) That the Respondent father spend time with the children on Father's Day weekend each year.

(e) That the applicant mother spend time with the children on Mother's Day weekend of each year.

For the purposes of the children's travel to allow their time with the mother in the Northern Territory:

(a) The Mother to do all such things as may be required to purchase a return airfare for the children not less than 30 days prior to their proposed departure dates from Melbourne with the father to reimburse the mother for 50% of such fare within 60 days of the purchase.

(b) That the parties do all things necessary to ensure that the children, travel as an unaccompanied minor on all flights until such age that they are deemed suitable not to travel as an unaccompanied minor.

That changeover is to take place with the father delivering and collecting the children at Melbourne Tullamarine Airport and the mother collecting and delivering the children at Town A Airport

For the purpose of telephone-Skype-Facetime or other electronic communication:

(a) the parent with whom the children not living with shall telephone the children each Monday, Wednesday and Sunday at 7:30pm AEST, as well as the Mother's birthday, with the call to be placed to [X]’s mobile phone;

(b) The children otherwise be at liberty to telephone the parent with whom they are not living at their own discretion;

(c) Each party keep the other advised at all times of the contact numbers for the children's personal mobile telephones and advise the other parent of any changes thereto within 48 hours

That each party keep the other advised at all times of their available email addresses and advise the other parent of any change thereto within 48 hours of any such change and all communication between the parties be limited to email correspondence except in medical or other emergencies regarding the children.

These orders provide authorisation to;

(a) allow the provision to both parties of any information affecting the health and welfare of the children from any health, educational or welfare professional or other professional attended upon by the children;

(b) To permit the children's schools to provide documents, including but not limited to reports, notices and photographs to both parties; and

10.

That each parent be permitted to take the children for holidays interstate or overseas during the time the children are otherwise with them upon obtaining the written consent of the non-travelling party with such consent not to be unreasonably withheld, provided that the travelling parent has provided, in writing, to the other parent, at least four weeks in advance:

(a) travel itineraries, nominating origin and destination;

(b) Evidence of fully paid return tickets for the children;

(d) Details of accommodation booked, including but not limited to, address and telephone number;

(e) Each party has liberty to apply at short notice in relation to any intended travel.

11.

Both parties shall do all such acts and sign all documents necessary to maintain current passports for the children and renew same as necessary on the basis that any fees be borne equally by the parties.

12.

That the parties ensure that the children's passports remain in the possession of the father at all times unless the children are travelling overseas without the father, in which case the father ensure the children’s passports are made available to the children by no later than 48 hours before the intended departure date and with the passports to be return the father no later than 48 hours upon the children return to Australia.

In the event the mother returns to Victoria the following orders shall apply:

13.

That all previous orders shall be discharged.

14.

That the parties have equal shared parental responsibility for the children namely [X] born … 2007 and [Y] born … 2008 (“the children”).

15.

That the children live with the mother, on a week about basis, from conclusion of school Friday to commencement of school Friday and each alternative week thereafter.

16.

That the children live with the father, on a week about basis, from conclusion of school Friday to the commencement of school Friday, and each alternative week thereafter.

17.

For the purpose of telephone-Skype-Facetime or other electronic communication:

(b) The children otherwise be at liberty to telephone the parent with whom they are not living at their own discretion;

(c) Each party keep the other advised at all times of the contact numbers for the children's personal mobile telephones and advise the other parent of any changes thereto within 48 hours

18.

That on each of the children’s birthdays at times to be agreed between the parties, and failing agreement, the parent who is not spending time with the child on their birthday pursuant to these orders shall spend time between 5:00pm and 6:00pm via Skype.

19.

That the Respondent father spend time with the children on Father's Day weekend each year.

20.

That the applicant mother spend time with the children on Mother's Day weekend of each year.

21.

22.

That these orders provide authorisation to:

(a) Allow the provision to both parties of any information affecting the health and welfare of the children from any health, educational or welfare professional or other professional attended upon by the children;

(b) Permit the children’s schools to provide documents including but not limited to report, notices and photographs to both parties; and

23.

(a) travel itineraries, nominating origin and destination;

(b) Evidence of fully paid return tickets for the children;

(d) Details of accommodation booked, including but not limited to, address and telephone number;

24.

That each party has liberty to apply at short notice in relation to any intended travel.

25.

That both parties shall do all such acts and sign all documents necessary to maintain current passports for the children and renew same as necessary on the basis that any fees be borne equally by the parties.

26.

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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