FALLERT & FALLERT - [2019] FCCA 3535

FEDERAL CIRCUIT COURT OF AUSTRALIA

FALLERT & FALLERT

[2019] FCCA 3535

Catchwords:
FAMILY LAW – Parenting – how much time two children aged 13 and 11 should spend with their father – relocation application – whether the mother ought to be permitted to move the children’s residence from the Eastern suburbs of Melbourne to Town G.

Legislation:

Family Law Act 1975 (Cth), ss.60B,60CA, 60CC, 64B, 65DAA

Cases cited:

Cowley v Mendoza [2010] FamCA 597
Heath & Hemming (No.2) [2011] FamCA 749
Mazorski v Albright [2007] FamCA 520
Taylor v Barker [2007] FamCA 1246

Applicant:

MR FALLERT

Respondent:

MS FALLERT

File Number:

DGC 2145 of 2016

Judgment of:

Judge Small

Hearing date:

30 January 2019

Date of Last Submission:

31 January 2019

Delivered at:

Melbourne

Delivered on:

9 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms Villella

Solicitors for the Applicant:

Perry Weston

Counsel for the Respondent:

Ms O’Connell

Solicitors for the Respondent:

Fiona R McGregor

ORDERS

All previous parenting orders in relation to the children X born … 2005 and Y born … 2008 (“the children”) are hereby discharged.
The parents shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The mother is hereby restrained by injunction from relocating the children’s place of residence outside the Melbourne Metropolitan Area.
The children shall spend time and communicate with the father:
(a)During school terms:
(i)on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, save that if the mother relocates the children more than one-and-a-half hour’s travel time from the father’s residence, time shall conclude at 7:00 p.m. on Sunday, or 7:00p.m. on Monday if the Monday is a public holiday;
(ii)on each Wednesday, from the conclusion of school to 7:00p.m.;
(b)for half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 7:00 p.m. on the second Saturday in even-numbered years, and from 7:00 p.m. on the second Saturday to the commencement of school in the next school term in odd-numbered years;
(c)for half of the long summer holidays each year by agreement and failing agreement for the first half in even-numbered years and the second half in odd-numbered years, and for the purpose of this order the long summer holidays shall be deemed to commence at 12:00 noon on the first Saturday and to conclude at 12:00 noon on the last Sunday;
(d)from 6:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in even-numbered years, and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;
(e)from 6:00 p.m. on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years, and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(f)for the children’s birthdays:
(i)when the birthday falls on…

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 FALLERT & FALLERT

Details

AGLC: Fallert and Fallert [2019] FCCA 3535
Case: [2019] FCCA 3535
Decision Date: 9 December 2019

CaseChat Overview and Summary

In the matter of Fallert & Fallert, Judge Small of the Family Court of Australia considered an application by the mother for permission to relocate the parties' two children, aged 13 and 11, from Melbourne's Eastern suburbs to Town G. The father opposed this relocation.

The central legal issues before the court were whether the mother should be permitted to relocate the children's residence to Town G and, consequently, what parenting orders were in the best interests of the children. This involved assessing the impact of such a move on the children's relationship with their father and their overall welfare.

Judge Small determined that the relocation was not in the children's best interests and therefore restrained the mother by injunction from moving their residence outside the Melbourne Metropolitan Area. The court ordered that the parents have equal shared parental responsibility for the children, with the children to live with the mother. Detailed orders were made regarding the time the children would spend with the father, including provisions for school terms, holidays, and specific occasions, with adjustments to the father's time if the mother were to relocate the children more than one-and-a-half hours from his residence. The court also issued injunctions restraining both parents from denigrating the other or discussing the proceedings in the children's presence, and from allowing the children to read the court's reasons for judgment.

Orders

Orders of the court

All previous parenting orders in relation to the children X born … 2005 and Y born … 2008 (“the children”) are hereby discharged.

The parents shall have equal shared parental responsibility for the children.

The children shall live with the mother.

The mother is hereby restrained by injunction from relocating the children’s place of residence outside the Melbourne Metropolitan Area.

The children shall spend time and communicate with the father:

(a) During school terms:

(i) on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, save that if the mother relocates the children more than one-and-a-half hour’s travel time from the father’s residence, time shall conclude at 7:00 p.m. on Sunday, or 7:00p.m. on Monday if the Monday is a public holiday;

(ii) on each Wednesday, from the conclusion of school to 7:00p.m.;

(b) for half of all school term holidays by agreement between the parties and failing agreement from the conclusion of school on the last day of term to 7:00 p.m. on the second Saturday in even-numbered years, and from 7:00 p.m. on the second Saturday to the commencement of school in the next school term in odd-numbered years;

(c) for half of the long summer holidays each year by agreement and failing agreement for the first half in even-numbered years and the second half in odd-numbered years, and for the purpose of this order the long summer holidays shall be deemed to commence at 12:00 noon on the first Saturday and to conclude at 12:00 noon on the last Sunday;

(d) from 6:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in even-numbered years, and from 11:00 a.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;

(e) from 6:00 p.m. on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years, and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;

(f) for the children’s birthdays:

(i) when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in even-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in odd-numbered years;

(ii) when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in even-numbered years, and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;

(g) from 6:00 p.m. on the evening before Father’s Day to 6:00 p.m. on Father’s Day each year;

(h) from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the father’s birthday each year;

(i) at other times by agreement between the parties in writing.

The children’s time with the father shall suspend if necessary on the following occasions:

(a) for the children’s birthdays:

(i) when the birthday falls on a school day, from the conclusion of school, or 4:00 p.m. if not a school day, to 7:00 p.m. on the day before the birthday in odd-numbered years, and from the conclusion of school to 7:00 p.m. on the birthday in even-numbered years;

(ii) when the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in odd-numbered years, and from 2:00 p.m. to 6:00 p.m. in even-numbered years;

(b) from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on Mother’s Day each year;

(d) at other times by agreement between the parties in writing.

The time the children spend with the father pursuant to paragraph 5(a) hereof shall suspend during all school holidays and shall resume after the holidays as if the holidays had not intervened.

When the children’s time with the father is expressed to commence or conclude at the conclusion or commencement of the children’s school day, then changeover shall take place at the children’s school, and at all other times changeover shall take place at the McDonald’s restaurant closest to the midpoint between the parties’ residences, or at such other venue as the parties might agree in writing.

Save in the event of an emergency, the parents shall communicate about the children’s care and welfare using a parenting application such as “2houses” or “Our Family Wizard”, and each shall bear his or her own cost of the use of such applications.

10.

The mother shall ensure that the child’s school makes available to the father, at the father’s expense if any, all school reports, photographs, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by either of the children, and the parents, and their partners if any, shall all be at liberty to attend parent-teacher interviews, at different times should they so choose, and at all sporting or cultural events usually attended by parents.

11.

The parties shall each inform the other of any serious illness or injury suffered by the children or either of them which requires hospitalisation or specialist treatment while they are in their respective care, and they shall authorise any treating medical or allied practitioners who are treating the child or children to speak to the other parent about the children’s treatment.

12.

The parties and their servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, criticising, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the children or either of them and from permitting any other person to do so;

(b) discussing these proceedings with or in the presence or hearing of the children or either of them (save to explain any changes in their living circumstances to them) and from permitting any other person to do so; and

(c) allowing the children or either of them to access, read, or have read to them, any portion of the Court’s Reasons for Judgment in this matter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.