Fournier and Noelle - [2007] FamCA 875

FAMILY COURT OF AUSTRALIA

FOURNIER & NOELLE

[2007] FamCA 875

FAMILY LAW – CHILDREN - Competing parenting applications – mother did not participate in the trial after her application for an adjournment was unsuccessful – reversal of long standing status quo – children aged 11 and 8 years ordered to live with father in another state after only having spent time with him spasmodically since 2003 – finding that the mother had not and will not in the future promote or facilitate a meaningful relationship between father and the children – s 60CC does not prescribe how parents ought to behave, it is a legislative provision which refers to matters which must be taken into account by the court when determining what is in a child’s best interests.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT:

Mr Fournier

RESPONDENT:

Ms Noelle

INDEPENDENT CHILDREN’S LAWYER:

McBain Lawyers

FILE NUMBER:

MLF

6279

2003

DATE DELIVERED:

23 August 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13, 14 & 16 August 2007

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER’S
COUNSEL:

Ms H. Dellidis

INDEPENDENT CHILDREN’S LAWYER’S
SOLICITOR:

McBain Lawyers

Orders

All previous orders be discharged.
The children of the relationship S born … April 1996 and T born … June 1999 live with the father and for that purpose the father forthwith be at liberty to collect the children from school by arrangement with the proper officer of the school or from such other place as the children may be located.
The father have sole parental responsibility for matters relating to the education and training of the children.
The children communicate and spend time with the mother as follows:-
(i)     For the first 4 weeks of the 2007/2008 Christmas school holidays, including Christmas day commencing on the first Saturday of the Christmas school holidays and each alternate year thereafter and for the last 4 weeks of the 2008/2009 Christmas school holidays commencing at 12 noon on 28 December and alternate each year thereafter.
(ii)    For two weeks during the April-March school holidays, for the first week of the June-July school holidays, and two weeks during the September school holidays, in each year commencing at 12.00 noon on the first Saturday of each school term holiday.
(iii)     In Melbourne, upon the provision of two months written notice for each school term, for not more than one weekend in each school term, from 6pm Friday until 2pm Sunday or 2.00 p.m. on the day prior to the recommencement of school if the Monday or Tuesday immediately after the weekend is a non-school day;
(iv)   Upon the provision of four weeks’ written notice for each school term, for not more than two consecutive weekends in each school term from 4pm Friday until 4pm…

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 Fournier and Noelle

Details

AGLC: Fournier and Noelle [2007] FamCA 875
Case: [2007] FamCA 875
Decision Date: 23 August 2007

CaseChat Overview and Summary

This matter concerned an application before Bennett J in the Family Court of Australia, brought by the father, Fournier, and the mother, Noelle. The dispute centred on the living arrangements and time spent with the parties' two children, S and T. The court was required to make orders regarding the children's residence, parental responsibility, and the specific terms of communication and time spent between the children and each parent.

The court was tasked with determining the primary residence of the children, the allocation of parental responsibility for key decisions concerning their upbringing, and the detailed schedule for the children to communicate with and spend time with the mother. Additionally, the court needed to address the financial responsibilities for the children's travel between parents, the procedures for changeovers, and provisions for information sharing regarding the children's health and education. The court also considered orders to restrain certain behaviours by the mother and to ensure the children's return to Australia.

Bennett J ordered that the children live with the father, granting him sole parental responsibility for their education and training. The court then set out a comprehensive schedule for the children to communicate with and spend time with the mother, including specific periods during school holidays and weekends, with detailed provisions for travel costs and changeovers. The orders also included restraints on the mother discussing the proceedings with the children and on her mobile phone contact, as well as prohibitions on removing the children from Australia. A recovery order was issued, to be stayed pending notification from the independent children's lawyer. The court also made orders regarding the discharge of the independent children's lawyer, the provision of information to the mother, and the supervision of compliance with the parenting orders by a family consultant for a period of two years.

Orders

Orders of the court

All previous orders be discharged.

The children of the relationship S born … April 1996 and T born … June 1999 live with the father and for that purpose the father forthwith be at liberty to collect the children from school by arrangement with the proper officer of the school or from such other place as the children may be located.

The father have sole parental responsibility for matters relating to the education and training of the children.

The children communicate and spend time with the mother as follows:-

(i) For the first 4 weeks of the 2007/2008 Christmas school holidays, including Christmas day commencing on the first Saturday of the Christmas school holidays and each alternate year thereafter and for the last 4 weeks of the 2008/2009 Christmas school holidays commencing at 12 noon on 28 December and alternate each year thereafter.

(ii) For two weeks during the April-March school holidays, for the first week of the June-July school holidays, and two weeks during the September school holidays, in each year commencing at 12.00 noon on the first Saturday of each school term holiday.

(iii) In Melbourne, upon the provision of two months written notice for each school term, for not more than one weekend in each school term, from 6pm Friday until 2pm Sunday or 2.00 p.m. on the day prior to the recommencement of school if the Monday or Tuesday immediately after the weekend is a non-school day;

(iv) Upon the provision of four weeks’ written notice for each school term, for not more than two consecutive weekends in each school term from 4pm Friday until 4pm Sunday, in Adelaide, with changeover to take place at …, Victoria Square, Adelaide.

(v) By telephone when the father do all acts and things necessary for the children to place a telephone call to the mother:-

(a) between the hours of 7.00pm and 8.00pm each Monday and Thursday when the children are not spending time with the mother pursuant to these orders or otherwise;

(b) between 7.00 a.m. and 8.00 a.m. on the birthdays of the children, the mother, Mother’s Day and Christmas Day in the event that the mother is not spending time with the children on those days pursuant to these orders or otherwise;

(d) as may otherwise be agreed between the parties in writing from time to time.

The mother be solely responsible for the costs of travel associated with spending time with the children pursuant to paragraphs 4(iii) and 4(iv) herein.

The mother be solely responsible for the costs associated with the children’s travel from Adelaide to Melbourne at the commencement of her time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the mother provide to the father the airplane tickets booked for the children at least 28 days’ prior to such travel.

The father be solely responsible for the costs associated with the children’s travel from Melbourne to Adelaide at the conclusion of the mother’s time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the father provide to the mother the airplane tickets booked for the children at least 21 days’ prior to such travel.

That if a parent fails or neglects to deliver the children (or either of them) to the airport in sufficient time for the children to meet (check in, pass through security and embark) the specified flight, then that parent be and is hereby solely responsible for and, if necessary will indemnify the other, in relation to the airfare and associated costs of the children being transported on the next available flight to Melbourne or Adelaide (as the case may be) regardless of the fact that the forfeited airfare may have been a discounted airfare with conditions attached and the fare for the next available flight is a full economy or business class airfare.

Unless otherwise provided for in these orders, changeovers for the purposes of the mother spending time with the children pursuant to paragraph 4 herein take place as follows:

(a) the mother collect the children at the commencement from Melbourne airport if the children are travelling by airplane, or otherwise from …, Victoria Square in Adelaide.

(b) the father collect the children at the conclusion from Adelaide airport if the children are travelling by airplane, or otherwise from Shell Service Station at the intersection of S Street and H Street, M.

10.

That times on which time spent is expressed to commence or to conclude or communication is to take place are, for the purpose of this Order, local times for the state in which the children are located. The times on which to be spent is expressed to commence and conclude and where children are being transported by commercial airline is, for the purpose of this Order the time on which the children’s flight is scheduled to depart and if no commercial flight leaves at that time is to be varied to the departure time of the flight closest to the time provided for in paragraph 4 of this Order.

11.

Each of the father and mother provide to the other 21 days’ prior written notice of any proposed change of address of their residence.

12.

Each of the father and mother forthwith advise the other, in writing, of any change in their contact telephone numbers.

13.

The father do all acts and things and sign all documents necessary to ensure the mother is provided with all information regarding the children’s health and education, including school reports, school photos and any medical reports and irrevocably authorise and direct the proper officer of the school(s) at which either child attends to send to the mother (at her expense, if any) a copy of school reports, AIM test results, newsletters, order forms for school photographs and other information usually disseminated to parents.

14.

The father promptly upon receipt by him of school photographs of the children send to the mother by pre-paid post not less than one such photograph of each child for retention by the mother with the cost of the photograph and the postage to be at the expense of the father. It will be sufficient compliance by the father with his obligations herein if he causes each child to send at least one photograph of herself to the mother by pre-paid post.

15.

The mother, her servants and agents, be and are hereby restrained from discussing the allegations or assessments in these proceedings, the father or his present mother, to or in the presence or hearing of the children.

16.

The mother, her servants and agents be and are hereby restrained from contacting the children on their mobile telephones on occasions other than Monday and Thursday evenings between 7.00pm and 8.00pm and such other times as may be agreed between the parties and evidenced in writing and the father may, in his discretion, limit access by the children, or either of them, to their mobile telephones at any other time,.

17.

Each of the father and mother, their servants and agents be and are hereby restrained from removing the children from the Commonwealth of Australia and it is requested that the Marshall of the Family Court and all officers of the Australian Federal Police give effect to this Order.

18.

That for the purpose of enabling compliance with the Orders made in the Family Court of Australia this day whereby the children S born … April 1996 and T born … June 1999 live with the father, a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

(17.1) to find and recover the children S born … April 1996 and T born … June 1999 and to deliver the child to the father at such place as the father and the person effecting such recovery agree to be appropriate; and

(17.2) to stop and search any, vehicle, vessel or aircraft and to enter and search any premises or places in which there is at any time reasonable cause to believe that the child may be found.

19.

That paragraph 18 hereof be stayed until 12 noon today. In the event that the independent children’s lawyer notifies the proper officer of the Australian Federal Police that the children have been collected by the father and the recovery order is not required to be executed, the recovery order be and is hereby discharged.

20.

The father serve a copy of this Order upon the Australian Federal Police as soon as practicable.

21.

That until further order each parent be and is hereby restrained from causing, permitting or suffering either child to be known by any family name other than “[Fournier]”.

22.

That until further order the mother by herself her servants or agents be and is hereby restrained from attending at, remaining in or being within 100 metres of D School until after the father has collected the children.

23.

That the independent children’s lawyer facilitate delivery of any clothes or personal possessions of the children from the mother to the father provided that nothing in this Order compels the mother to give the children any belongings or clothes nor for the independent children’s lawyer to remain appointed in these proceedings if no appropriate agreement can be reached.

24.

That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable, to give either party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these parenting orders.

25.

The order made 8 April 2004 appointing the Independent Children’s Lawyer be discharged subject to the following:-

(a) the independent children’s lawyer explaining to the children in words likely to be understood by them the outcome of these proceedings, such conference to be convened in the presence, and with the assistance of, Ms B, family consultant;

(b) advising the proper officer of D School of the outcome of these proceedings providing him/her with a copy of this order;

26.

That liberty be reserved to all parties to make application on short notice in relation to implementation with paragraph 2 of this Order.

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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