FISK & BRASS - [2013] FCCA 1602

FEDERAL CIRCUIT COURT OF AUSTRALIA

FISK & BRASS

[2013] FCCA 1602

Catchwords:
FAMILY LAW – Parenting – relocation sought by one parent with the children – consideration of parental responsibility – consideration of equal or substantial and significant time – whether such an arrangement was practicable and in the best interests of the children – specific consideration of each parent’s capacity and willingness to foster a relationship with the other parent particularly if there were a considerable geographic divide.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CA, 60CC(2) and (3), 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
Chappell & Chappell (2008) FLC 93-382
U v U (2002) 211 CLR 238

Applicant:

MR FISK

Respondent:

MS BRASS

File Number:

TVC 324 of 2011

Judgment of:

Judge Coker

Hearing dates:

26 & 27 June 2013

Date of Last Submission:

15 July 2013

Delivered at:

Townsville

Delivered on:

14 October 2013

REPRESENTATION

Counsel for the Applicant:

Ms Wilson

Solicitors for the Applicant:

Everett’s Family Law

Counsel for the Respondent:

Mr Betts

Solicitors for the Respondent:

The Law Office

Counsel for the Independent
Children’s Lawyer:

Mr Moore

Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children X born (omitted) 2004 and Y born (omitted) 2007 (“the children”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order (2):
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

IF THE PARENTS DO NOT LIVE IN THE SAME LOCALITY

That if the parents do not live in the same locality, the children live with the Father and spend time with the Mother at all reasonable times as may be agreed between the parents and failing agreement as follows:
(a)In the (omitted) area, on 2 weekends during each school term, subject to the Mother providing the Father with at least 10 days’ notice in writing of her intention to spend such time with the children and providing that the Mother ensures that the children participate in all school and extra-curricular activities as may fall during that weekend; and
(b)During the gazetted school holidays:
(i)For the whole of the Easter end of Term 1 gazetted school holiday period in each even numbered…

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 FISK & BRASS

Details

AGLC: FISK & BRASS [2013] FCCA 1602
Case: [2013] FCCA 1602
Decision Date: 14 October 2013

CaseChat Overview and Summary

In the matter of FISK & BRASS, Judge Coker made orders concerning the parental responsibility and time arrangements for two children, X and Y. The dispute centred on how the parents would share responsibility for the children's upbringing and the specific arrangements for the children's living arrangements and time spent with each parent.

The court was required to determine the extent of equal shared parental responsibility for major long-term issues, how parents should consult on such decisions, and the specific arrangements for the children's daily care, welfare, and development. Further, the court needed to establish detailed time arrangements for the children with each parent, considering whether the parents lived in the same locality or not, including provisions for school holidays, special occasions, and communication. The court also had to address the process for future dispute resolution and the discharge of previous orders and parenting plans.

Judge Coker ordered the discharge of all previous orders and parenting plans. The parents were granted equal shared parental responsibility for major long-term issues, with specific requirements for consultation and genuine effort to reach joint decisions. The orders detailed how each parent would be responsible for the children's daily care when the children were with them. Significant detail was provided regarding the children's living arrangements and time spent with each parent, differentiating between scenarios where parents lived in the same or different localities, and outlining specific schedules for school terms, gazetted school holidays, and special occasions. The court also mandated communication protocols, including telephone and Skype contact, and established a framework for future mediation and dispute resolution, requiring parties to attempt mediation before applying to court for variations.

Orders

Orders of the court

That all previous Orders and Parenting Plans be discharged.

That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children X born (omitted) 2004 and Y born (omitted) 2007 (“the children”).

That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

That notwithstanding the provisions of Order (2):

(a) The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.

(b) The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

IF THE PARENTS DO NOT LIVE IN THE SAME LOCALITY

That if the parents do not live in the same locality, the children live with the Father and spend time with the Mother at all reasonable times as may be agreed between the parents and failing agreement as follows:

(a) In the (omitted) area, on 2 weekends during each school term, subject to the Mother providing the Father with at least 10 days’ notice in writing of her intention to spend such time with the children and providing that the Mother ensures that the children participate in all school and extra-curricular activities as may fall during that weekend; and

(b) During the gazetted school holidays:

(i) For the whole of the Easter end of Term 1 gazetted school holiday period in each even numbered year;

(ii) For one half of the June/July end of Term 2 gazetted school holiday period in each year and, unless otherwise agreed, for the first half in odd numbered years and the second half in even numbered years;

(iii) For the whole of the September/October end of Term 3 gazetted school holiday period in each year;

(iv) For the first half of the Christmas end of Term 4 gazetted school holiday period in odd numbered years and for the second half of the Christmas end of Term 4 gazetted school holiday period in even numbered years.

IF THE PARENTS LIVE IN THE SAME LOCALITY

In the event that the parents live in the same locality, then the children live with each parent in an equal time arrangement with changeovers taking place on Friday afternoons at the children’s school at the conclusion of the school day.

That the week-about arrangements pursuant to Order (6) herein be suspended during the gazetted school holidays.

That for the purposes of the gazetted school holiday periods, the children shall spend time with each parent as follows:

(a) For one half of each gazetted school holiday period, with the Mother to spend the first half in odd numbered years and the second half in even numbered years and the Father to spend the first half in even numbered years and the second half in odd numbered years.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

(c) The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(d) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(e) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(f) The whole of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Sunday preceding the recommencement of school;

(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

10.

That the children shall spend time with and communicate with their parents on special occasions, provided the parents are in the same locality, as follows:

(a) For the purpose of the Christmas school holiday period:

(i) In even numbered years, with the Mother from 5.00pm on 24 December until 12.00 midday on 25 December and with the Father from 12.00midday on 25 December until 5.00pm on 26 December; and

(ii) In odd numbered years, with the Father from 5.00pm on 24 December until 12.00 midday on 25 December and with Mother from 12.00 midday on 25 December until 5.00pm on 26 December.

(b) With the Mother on the Mother’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Father pursuant to these orders);

(c) With the Father on the Father’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Mother pursuant to these orders).

(d) On each child’s birthday, Z’s birthday and a parent or step-parent’s birthday if the children are not otherwise in a parent’s care, then time with that parent, if it falls on a weekday from after school until school the following morning or 9.00am and if it falls on a weekend for a period of five (5) hours as agreed.

11.

That in the event of the parents not being in the same locality on special days, then the children communicate with the parent with whom they are not living, by telephone or via Skype on:

(a) The birthday of the child between 6.30pm and 7.00pm;

(b) The birthday of that parent, step-parent or sibling, between 6.30pm and 7.00pm;

(d) Christmas Day between 9.00am and 9.30am (if the parents are not in the same locality);

(e) On Mother’s Day and Father’s Day between 9.00am and 9.30am.

12.

That the children shall communicate with their parents on the telephone or via Skype at such times as the children reasonably request, and in particular on Sundays and Wednesdays between 6.30pm and 7.00pm and in relation to such communication, the parent with whom the children are living shall:

(a) Ensure that the children are available to receive the telephone call during this time;

(b) Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the other parent misses the telephone call from the children or the children are unable to call; and

13.

That except as otherwise agreed in writing between the parents, changeovers will take place at the children’s school.

14.

Changeovers occurring outside of the school term are to occur at the parents respective homes with the parent commencing time with the children collecting the children from the other parent’s home.

15.

That the Mother and Father shall:

(a) Keep the other parent informed at all times of their residential address, email address, landline (if any) and mobile telephone number and inform the other parent of any change to those details within twenty-four (24) hours of such change;

(b) Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

16.

That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

17.

That during the time the children are with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) Speak of the other parent respectfully;

(c) Not denigrate or insult the other parent, their partner or family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, their partner or family in the hearing or presence of the children; and

(d) Not speak to the children about adult issues or speak about adult issues in the hearing or presence of the children.

18.

That the parents use the “Our Children Australia” website to facilitate communication of issues in relation to the children and facilitate their joint parenting. Each parent is to bear their own costs of subscription to that service.

19.

On the occasions stipulated below, the parties will attend at a Commonwealth Family Relationships Centre for the purposes of participating in mediation about the parenting of the children.

20.

When the parties attend mediation or dispute resolution as required by Order 19:

(a) They shall attempt in good faith to reach agreement having regard to the best interests of the children with respect to the parenting arrangements for the children and the time that the children spend with each parent.

(b) Any agreement that the parties reach may alter the operation of these orders as they relate to parenting, provided that it is in writing signed by each party, stipulates that it operates to alter these orders and stipulates that it is intended to operate as a parenting plan within the meaning of Division 4 of Part VII of the Family Law Act 1975 or any statutory equivalent to that Division.

21.

The parties will attend mediation:

(a) At a mutually convenient date on which an appointment for mediation can be arranged at a Commonwealth Family Relationships Centre that is on, or within 30 days after, of each anniversary of this Order unless both parties agree in writing that such mediation is not necessary;

(b) Six (6) months prior to the children each commencing their secondary schooling if the parents cannot otherwise agree on the High School that the children will attend;

(i) Where the parties are unable to resolve a conflict by normal discussion, they both agree to use the following conflict management step before using other means:

(ii) One party can elect to send the other a short written note which states “I believe that we have unresolved conflict over… Pursuant to our existing parenting orders I request that you return this letter, signed and dated within 7 days. I will then arrange for us to meet with a mediator or a counsellor at a mutually convenient time within the following 14 days with a view to defining the perceived problems and considering a range of possible solutions.”

(iii) If the other party does not return the signed and dated letter, either party is free to consider what other avenues are available to address the conflict.

22.

The parties shall pay such mediation fees as are required of each of them by the Family Relationships Centre at which they attend mediation, but will otherwise bear their own expenses with respect to mediation.

23.

Before an Application is made to a Court for a variation of these Orders to be taken into account, the changing needs and/or circumstances of the children or the parties, each party is to take steps referred to in paragraph 21 and 22.

24.

That the Independent Children’s Lawyer by discharged.

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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