Farleigh and Wills and Ors - [2011] FamCA 431

FAMILY COURT OF AUSTRALIA

FARLEIGH & WILLS AND ORS

[2011] FamCA 431

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks to relocate with the child to Canada – Where the father and the paternal grandparents as intervenors, seek orders that the child remain in Australia – Where the ICL seeks order that the mother and the child relocate to Canada, but not immediately – Where parties consent to shared parental responsibility – Where relocation would not be in the best interests of the child – Where equal time order not in the best interests of the child or reasonably practicable – Where father’s work commitments mean that he is away for a significant time at sea –Where substantial and significant time order is appropriate – Where child is to live with the mother and spend substantial and significant time with the father and spend limited weekend and holiday time with the paternal grandparents.

Family Law Act 1975 (Cth) s 60B, 60CC, s 65D(1), s 65DAA.

AMS and AIF (1999) 199 CLR 160; [1999] HCA 26
MRR and GR (2010) 263 ALR 368
U and U (2002) 211 CLR 238; [2002] HCA 36

APPLICANT:

Ms Farleigh

RESPONDENT:

Mr Wills Jnr

INTERVENORS:

Mr Wills Snr and Mrs Wills

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

7638

2010

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12, 13, 14 & 15 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carter

SOLICITOR FOR THE APPLICANT:

Hogg & Reid

COUNSEL FOR THE RESPONDENT:

Mr Hutchings

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

COUNSEL FOR THE INTERVENORS:

Ms Smallwood

SOLICITOR FOR THE INTERVENORS:

Schetzer Constantinou

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the husband and the wife have equal shared parental responsibility for the child T (the child) born ... January 2007.
That the child live with the wife.
That until the child commences school and during times when the husband is not rostered to work, he spend time with the child as follows:
(a)from the conclusion of daycare (or 9 am if not a daycare day) on Wednesday until 7 pm on the following Friday in the first of a two week cycle; and
(b)from the conclusion of daycare on the Wednesday until 7 pm on the following Sunday in the second week of the two week cycle.
That during the times that the husband is rostered to work as set out in paragraph 3, the paternal grandparents spend time with the child during each alternate weekend from 4 pm on Friday until 7pm on Saturday.
That once the child commences attending school, and during times when the husband is not rostered to work, he spend time with the child as follows:
(a)from the conclusion of school on Wednesday until 7 pm on the following Friday in the first of a two week…

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.

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Details

Case: [2011] FamCA 431
Decision Date: 9 June 2011

CaseChat Overview and Summary

In the matter of *Farleigh and Wills and Ors*, heard before Cronin J, the dispute concerned parenting orders for the child T, born in January 2007. The proceedings involved the husband and wife, and also addressed the involvement of the paternal grandparents in the child's life.

The court was required to determine the nature of parental responsibility, where the child would live, and the specific arrangements for the child to spend time with each parent and the paternal grandparents. This included considering different arrangements for when the child was not yet attending school and after commencing school, as well as how these arrangements would operate during school holidays and when the husband was rostered to work. The court also had to consider provisions for the wife to take the child to Canada for holidays and the consequences of contravening the orders.

Cronin J ordered that the husband and wife have equal shared parental responsibility for the child. The child was to live with the wife. Specific time arrangements were made for the child to spend time with the husband, varying depending on whether the child was attending school and the husband's work roster. During times the husband was rostered to work, the paternal grandparents were to spend time with the child on alternate weekends. The court also made provisions for the suspension and resumption of these arrangements during school holidays and addressed the circumstances under which the wife could take the child to Canada for holidays, including the possibility of suspending the primary parenting orders if agreement could not be reached on these holiday periods. The court further certified that it was reasonable to engage counsel and that particulars of the obligations, consequences of contravention, and support services were set out in an attached Fact Sheet, which was incorporated into the orders.

Orders

Orders of the court

That the husband and the wife have equal shared parental responsibility for the child T (the child) born ... January 2007.

That the child live with the wife.

That until the child commences school and during times when the husband is not rostered to work, he spend time with the child as follows:

(a) from the conclusion of daycare (or 9 am if not a daycare day) on Wednesday until 7 pm on the following Friday in the first of a two week cycle; and

(b) from the conclusion of daycare on the Wednesday until 7 pm on the following Sunday in the second week of the two week cycle.

That during the times that the husband is rostered to work as set out in paragraph 3, the paternal grandparents spend time with the child during each alternate weekend from 4 pm on Friday until 7pm on Saturday.

That once the child commences attending school, and during times when the husband is not rostered to work, he spend time with the child as follows:

(a) from the conclusion of school on Wednesday until 7 pm on the following Friday in the first of a two week cycle;

(b) from the conclusion of school on the Wednesday until 7 pm on the following Sunday in the second week of the two week cycle; and

(c) for one half of all school holidays including the long summer holidays by agreement and failing agreement, during the one half or so much of it as coincides with the husband not being rostered to work.

That during the times that the husband is rostered to work as set out in paragraph 5 (a) and (b), the paternal grandparents spend time with the child during each alternate weekend from 4 pm on Friday until 7pm on Saturday and for the purposes of paragraph 5(c), at such times during the school term holidays and long summer holidays as may be agreed between the parties.

For the purposes of these orders, the various cycles referred to in paragraphs 3 and 5 shall be suspended during all school term holidays and the long summer holidays and they shall resume at the conclusion of the holiday periods as if there had been no interruption.

That upon the husband and wife agreeing about the wife being able to take the child to Canada each year for holidays, paragraphs 3 to 6 hereof are suspended.

That if the husband and wife cannot agree upon what periods the wife can remove the child from the Commonwealth of Australia for holidays to Canada, paragraphs 3 to 6 are suspended for up to 3 periods of 21 days each year nominated by the wife only 1 of which must coincide with the Victorian School holiday periods but the other 2 periods shall not coincide with the time that the husband is not rostered to work.

10.

That all extant applications be otherwise dismissed.

IT IS CERTIFIED:

11.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

12.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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