Finch & Harris (No.2) - [2014] FCCA 2507

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & HARRIS (No.2)

[2014] FCCA 2507

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary consent orders – where applicant residing temporarily in Sydney – best interests of the child – school attendance – sporting attendance – where father seeks that the child spends more time with him whilst the father is residing temporarily in Sydney – “micro-managing” parenting orders.

Legislation:

Evidence Act 1995 (Cth), s.144

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

Cases cited:
Finch & Harris [2014] FCCA 2152
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Nash & Reis [2013] FMCAfam 11
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099

Applicant:

MR FINCH

Respondent:

MS HARRIS

File Number:

SYC 7893 of 2011

Judgment of:

Judge Scarlett

Hearing date:

28 October 2014

Date of Last Submission:

28 October 2014

Delivered at:

Sydney

Delivered on:

5 November 2014

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

UNTIL FURTHER ORDER

Orders 4.1.1, 39, 42, 43 and 44 made on 8 May 2013 are suspended.
For such time as the Father resides in Sydney, the child X born (omitted) 2003 is to spend time with the Father each alternate weekend during the school term from 6:30pm on Friday until 7:30pm on Sunday PROVIDED THAT if the Monday immediately following the Sunday is a public holiday then until 7:30pm on the Monday commencing on Friday 7 November 2014.
For the purposes of Order (2) above changeover between the parties at the commencement of the Father’s time with the child and at the conclusion of the Father’s time with the child is to be at a location to be agreed between the parties outside the ticket barriers at the (omitted) Railway Station.
On all weekends that the child is in the care of the Father in accordance with Order (2) above the father is permitted to enrol the child to play cricket at the (omitted) Cricket Club at the Father’s expense.
The Father is to meet all the child’s necessary expenses involved with his playing cricket at the (omitted) Cricket Club.
The parties are to do all acts and things necessary to enable the child X to attend the (omitted) High School at the commencement of the first school term in 2015.
The Mother is to ensure that the names, addresses and telephone numbers of both parents are recorded by the child’s school for contact in case of emergencies.
Each parent is entitled to receive copies of all school reports, newsletters, bulletins, information about school photographs and all other material usually forwarded to parents of children attending the child’s school.
Each parent is permitted to attend all activities usually attended by parents of children attending the child’s school including parent-teacher interviews, concerts, prize giving ceremonies and sporting events.
BY CONSENT UNTIL…

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 Finch & Harris (No.2)

Details

AGLC: Finch & Harris (No.2) [2014] FCCA 2507
Case: [2014] FCCA 2507
Decision Date: 5 November 2014

CaseChat Overview and Summary

This matter concerned orders made by Judge Scarlett regarding the time spent by the child X with the Father, and related arrangements. The dispute centred on the practicalities of the child's living arrangements and schooling, particularly in light of the Father's residence in Sydney.

The court was required to determine the specific terms of the Father's time with the child, including the frequency and duration of contact, and the arrangements for changeovers. Further issues included the child's participation in extracurricular activities, specifically cricket, and the associated expenses. The court also had to address the child's enrolment in a particular high school and the sharing of associated costs, as well as the provision of school-related information and parental involvement in school activities.

Judge Scarlett made orders suspending previous directions and establishing a new schedule for the Father's time with the child, which was to occur on alternate weekends during school terms, with specific changeover locations at a railway station. The Father was permitted to enrol the child in cricket at his expense, and was to meet all associated costs. The parties were directed to ensure the child's attendance at a specified high school from the commencement of the 2015 school year, with the Mother to ensure parental contact details were recorded by the school. Both parents were granted rights to receive school reports and attend school activities. By consent, the parties were to share equally the costs of the child's high school enrolment, fees, uniforms, and shoes, with the Mother to make initial payments and advise the Father of the amounts. The application was adjourned for further mention.

Orders

Orders of the court

UNTIL FURTHER ORDER

Orders 4.1.1, 39, 42, 43 and 44 made on 8 May 2013 are suspended.

For such time as the Father resides in Sydney, the child X born (omitted) 2003 is to spend time with the Father each alternate weekend during the school term from 6:30pm on Friday until 7:30pm on Sunday PROVIDED THAT if the Monday immediately following the Sunday is a public holiday then until 7:30pm on the Monday commencing on Friday 7 November 2014.

For the purposes of Order (2) above changeover between the parties at the commencement of the Father’s time with the child and at the conclusion of the Father’s time with the child is to be at a location to be agreed between the parties outside the ticket barriers at the (omitted) Railway Station.

On all weekends that the child is in the care of the Father in accordance with Order (2) above the father is permitted to enrol the child to play cricket at the (omitted) Cricket Club at the Father’s expense.

The Father is to meet all the child’s necessary expenses involved with his playing cricket at the (omitted) Cricket Club.

The parties are to do all acts and things necessary to enable the child X to attend the (omitted) High School at the commencement of the first school term in 2015.

The Mother is to ensure that the names, addresses and telephone numbers of both parents are recorded by the child’s school for contact in case of emergencies.

Each parent is entitled to receive copies of all school reports, newsletters, bulletins, information about school photographs and all other material usually forwarded to parents of children attending the child’s school.

Each parent is permitted to attend all activities usually attended by parents of children attending the child’s school including parent-teacher interviews, concerts, prize giving ceremonies and sporting events.

10.

BY CONSENT UNTIL FURTHER ORDER the parties will share equally in the costs of the child’s High School enrolment and all school fees, school uniforms and shoes and for this purpose the Mother is to attend to payment in the first instance and advise the father by email of the amount paid within seven (7) days.

11.

The Application is adjourned to Tuesday 24 March 2015 for further mention at 10:00 am.

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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