Goddard and Hilditch - [2016] FamCA 631

FAMILY COURT OF AUSTRALIA

GODDARD & HILDITCH

[2016] FamCA 631

FAMILY LAW – CHILDREN – relocation – where the mother seeks an order that she be permitted to relocate with the child – where the father opposes the application – where consideration is given to the legal principles relevant to relocation proceedings – where consideration to the child maintaining a meaningful relationship with both parents – where consideration is given to the best interests of the child – where it is ordered that the parties have shared parental responsibility but the mother have sole parental responsibility in respect of health and education – where the child is to live with the mother and spend substantial and significant time with the father.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX

AMS v AIF (1999) 199 CLR 160
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding (2016) FamCAFC 21
Eddington & Eddington (No 2) (2007) FLC 93-349
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Ms Goddard

RESPONDENT:

Mr Hilditch

FILE NUMBER:

ADC

3960

2010

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

1, 2, 3 and 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Westley DiGiorgio

Orders

That the parties have shared parental responsibility for E born … 2007 (“the child”).
That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the child.
That in respect of education and health issues, the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.
That the child live with the mother.
The child shall spend time with the father as follows:-
(a)During term times, each alternate weekend from the conclusion of school on Wednesday until the commencement of school on the following Monday;
(b)For one half of the school holiday periods as agreed, or failing agreement for the April, June/July and September/October school holiday periods, the father shall spend time with the child for the first half of each period from the conclusion of school on the last day of term until 12 noon on the midpoint day of the school holiday period PROVIDED THAT the mother shall spend time with the child from 12 noon from the midpoint day of the school holiday period until the commencement of…

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 Goddard and Hilditch

Details

AGLC: Goddard and Hilditch [2016] FamCA 631
Case: [2016] FamCA 631
Decision Date: 5 August 2016

CaseChat Overview and Summary

This matter concerned orders made by Berman J regarding the shared parental responsibility, living arrangements, and time spent with a child, E, born in 2007. The dispute involved the allocation of decision-making authority for various aspects of the child's life, including education and health, as well as detailed provisions for the child's residence and time with each parent. The court also addressed specific concerns relating to the father's possession of firearms and the parties' conduct in the presence of the child.

The court was required to determine the extent of shared parental responsibility, specifically in relation to the child's education and health. It also needed to establish the primary residence of the child and set out a comprehensive schedule for the time the child would spend with each parent, including during school terms, holidays, and on special occasions. Further issues included the location of handovers, the father's access to firearms, and the conduct of the parties concerning discussions about the proceedings and denigration of each other in the child's presence.

Berman J ordered that the parties share parental responsibility for the child, with the mother having sole responsibility for decisions concerning education and health. In these areas, the mother was required to consult with the father but retained the final decision-making authority if agreement could not be reached. The child was ordered to live with the mother, and detailed provisions were made for the child's time with the father, including alternate weekends during term time and specific arrangements for school holidays and special occasions. The court also imposed an injunction restraining the father from possessing firearms or offensive weapons in the child's presence and from taking the child hunting until the age of 12. Furthermore, both parties were restrained from discussing the proceedings with or in the presence of the child, or denigrating the other parent. Provisions were also made for emergency contact, communication with the child's school, and access to medical information.

Orders

Orders of the court

That the parties have shared parental responsibility for E born … 2007 (“the child”).

That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the child.

That in respect of education and health issues, the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.

That the child live with the mother.

The child shall spend time with the father as follows:-

(a) During term times, each alternate weekend from the conclusion of school on Wednesday until the commencement of school on the following Monday;

(b) For one half of the school holiday periods as agreed, or failing agreement for the April, June/July and September/October school holiday periods, the father shall spend time with the child for the first half of each period from the conclusion of school on the last day of term until 12 noon on the midpoint day of the school holiday period PROVIDED THAT the mother shall spend time with the child from 12 noon from the midpoint day of the school holiday period until the commencement of school on the first day of term.

The parties shall spend time with the child as follows:-

(a) For the December/January school holiday periods, the parties shall spend time with the child on a week about basis as follows:-

(i) The father shall spend time with the child from the conclusion of school on the last day of term until 10 am on the second Saturday of the holiday period that shall continue each alternate week thereafter;

(ii) The mother shall spend time with the child from 10 am on the second Saturday of the holiday period that shall continue each alternate week thereafter;

(iii) Save and except that the party with the care of the child during the last week of the school holiday period shall continue to spend time with the child until the conclusion of school on the first day of the new school year;

(b) On special occasions as follows:-

(i) For Christmas as agreed between the parties or failing agreement as follows:-

A. In 2016 and each alternate year thereafter, the father shall spend time with the child from 3 pm on 24 December until 3 pm on 26 December; and

B. In 2017 and each alternate year thereafter, the mother shall spend time with the child from 3 pm on 24 December until 3pm on 26 December;

(ii) For Easter as agreed between the parties or failing agreement as follows:-

A. In 2017 and each alternate year thereafter, the mother shall spend time with the child from 6 pm on Maundy Thursday (or the conclusion of school if such day is a school day) until 6 pm on Easter Monday; and

B. In 2018 and each alternate year thereafter, the father shall spend time with the child from 6 pm on Maundy Thursday (or the conclusion of school if such day is a school day) until 6 pm on Easter Monday;

(iii) For Mother’s Day and Father’s Day as agreed between the parties or failing agreement as follows:-

A. The mother shall spend time with the child from 9 am until 8 pm on Mother’s Day;

B. The father shall spend time with the child from 9 am until 8 pm on Father’s Day;

(iv) For the child’s birthday (being …) as agreed between the parties or failing agreement the party with whom the child is not spending time shall spend time with the child as follows:-

A. When such day is not a school day for a period of four (4) hours from 12 noon until 4 pm; and

B. When such day is a school day from the conclusion of school until 6 pm.

That handovers which do not occur at the child’s school take place at the Mobil Service Station in G Town.

That the father be restrained and an injunction be granted restraining the father from possessing a firearm or any other offensive weapon in the presence of the child or taking the child hunting until the child shall attain the age of 12 years.

That the parties are restrained from discussing these proceedings with the child or in the presence of the child or allowing any other person to do so or from denigrating the other party in the presence of the child or allowing any other person to do so.

10.

That in the event of an emergency concerning the child the party with the care of the child shall contact the other party as soon as possible.

11.

That each party shall do all acts and things necessary including the provision of all authorities to enable the other to communicate with the child’s school and to request all information and copies of documents from such school as he or she may request in relation to the child.

12.

That the mother shall do all acts and things necessary including the provision of all authorities necessary to enable the father to obtain information and communicate with any doctor, dentist, specialist or any other medical practitioner who has or may provide treatment to the child.

13.

That a copy of this order be provided to the proper officer at the child’s school and to any of the child’s treating health professionals if deemed necessary.

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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