GOODALL & CHIFLEY - [2014] FCCA 676

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODALL & CHIFLEY

[2014] FCCA 676

Catchwords:
FAMILY LAW – Parenting – four year old boy – week about arrangement from the age of 12 months – mother now relocated to Brisbane – whether boy should go with her or remain in Melbourne with his father.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751
Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597
Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111
McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4

Applicant:

MS GOODALL

Respondent:

MR CHIFLEY

File Number:

MLC 11250 of 2013

Judgment of:

Judge Riley

Hearing dates:

17 and 18 March 2014

Date of Last Submission:

18 March 2014

Delivered at:

Melbourne

Delivered on:

10 April 2014

REPRESENTATION

Counsel for the applicant:

Ms Agresta

Solicitors for the applicant:

Septimus Jones & Lee

Counsel for the respondent:

Mr P Indovino

Solicitors for the respondent:

Randles Cooper & Co Pty Ltd

ORDERS

The mother and father have equal shared parental responsibility for X, born (omitted) 2009 (“X”).
X live with his father.
X spend time with his mother as follows:
(a)during 2014:
(i)one week per month;
(ii)by telephone or Skype at least four times each week; and
(iii)as otherwise agreed between the parents; and
(b)during 2015 and afterwards:
(i)one weekend each school term;
(ii)the whole of the school term holidays in about April and September;
(iii)half of the school term holidays in about July;
(iv)half of the summer holidays, in two week blocks until X is eight years old, with the first two weeks to be spent with the mother in 2015 and in alternate years thereafter, and in blocks of half the holidays after X turns eight years old;
(v)by telephone or Skype at least four times each week; and
(vi)as otherwise agreed between the parents; and
(c)at such further and other times as may be agreed if the mother is in Melbourne.
Changeover occur at Brisbane Airport every fourth time X travels from Melbourne to Brisbane or Brisbane to Melbourne and otherwise occur at Tullamarine Airport unless otherwise agreed.
When X travels by plane he be accompanied by either the father or the mother or his or her agreed nominee, until such time as the parents agree that X may travel unaccompanied.
When changeover is to occur at Brisbane Airport, the father arrange and pay for the fights for X and any accompanying adult.
When changeover is to occur at Tullamarine Airport, the mother arrange and pay for the flights for X and any accompanying adult.
Each parent give the other complete details of X’s flights, including date, time and airline, at least two weeks prior…

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 GOODALL & CHIFLEY

Details

AGLC: Goodall and Chifley [2014] FCCA 676
Case: [2014] FCCA 676
Decision Date: 10 April 2014

CaseChat Overview and Summary

This matter concerned an application for final orders in the Federal Circuit Court of Australia, before Judge Riley. The parties, the mother and father, sought to resolve issues concerning their child, X, born in 2009. The dispute centred on arrangements for parental responsibility, living arrangements, and time spent between X and each parent.

The court was required to determine the most appropriate orders for X's upbringing, specifically addressing equal shared parental responsibility, where X would live, and the specific time X would spend with each parent. Further issues included arrangements for travel, communication between parents, and provisions to ensure X's wellbeing and education, including prohibitions on denigrating the other parent.

Judge Riley made orders for equal shared parental responsibility, with X to live with his father. The orders detailed a comprehensive schedule for X to spend time with his mother, progressively increasing over time and varying according to school holidays. The court also made specific provisions regarding travel arrangements, including who would arrange and pay for flights depending on the changeover location, and the requirement for parents to provide flight details in advance. Further orders addressed communication protocols between the parents, including the use of specific methods for different types of communication, and mandated that neither parent denigrate the other or their family members in X's presence. The court also clarified each parent's rights and responsibilities regarding X's schooling and health.

Orders

Orders of the court

The mother and father have equal shared parental responsibility for X, born (omitted) 2009 (“X”).

X live with his father.

X spend time with his mother as follows:

(a) during 2014:

(i) one week per month;

(ii) by telephone or Skype at least four times each week; and

(iii) as otherwise agreed between the parents; and

(b) during 2015 and afterwards:

(i) one weekend each school term;

(ii) the whole of the school term holidays in about April and September;

(iii) half of the school term holidays in about July;

(iv) half of the summer holidays, in two week blocks until X is eight years old, with the first two weeks to be spent with the mother in 2015 and in alternate years thereafter, and in blocks of half the holidays after X turns eight years old;

(v) by telephone or Skype at least four times each week; and

(vi) as otherwise agreed between the parents; and

Changeover occur at Brisbane Airport every fourth time X travels from Melbourne to Brisbane or Brisbane to Melbourne and otherwise occur at Tullamarine Airport unless otherwise agreed.

When X travels by plane he be accompanied by either the father or the mother or his or her agreed nominee, until such time as the parents agree that X may travel unaccompanied.

When changeover is to occur at Brisbane Airport, the father arrange and pay for the fights for X and any accompanying adult.

When changeover is to occur at Tullamarine Airport, the mother arrange and pay for the flights for X and any accompanying adult.

Each parent give the other complete details of X’s flights, including date, time and airline, at least two weeks prior to departure.

Each parent:

(a) immediately inform the other in the event that X is involved in any serious accident or suffers from any serious illness; and

(b) forthwith inform the other of any medical or other health practitioner with whom X is scheduled to consult, or has consulted, and authorise the other parent to make all reasonable inquiries of such practitioner(s) in respect of matters concerning X’s health.

10.

Each parent notify the other parent of any change of his or her residential address and/or email address at least 28 days prior to such change and keep the other informed of any change in contact telephone numbers within 48 hours of any change.

11.

The parents use SMS text message or email for communication between them in relation to X’s health, education, care, welfare and development, and by telephone when urgent communication is required.

12.

Neither parent abuse, insult, belittle, rebuke or otherwise denigrate the other party or any member of the other parent’s family or household in the presence or hearing of X nor permit any other person to do so.

13.

The onus to stay abreast of school activities and communications reside with each parent, and each of the father and the mother be authorised:

(a) to be able to attend any kindergarten/school attended by X and to communicate with teachers and kindergarten/school staff in relation to X;

(b) to receive copies of kindergarten/school reports, and photographs and notices usually provided to the parents, at the expense (if any) of the receiving parent;

(c) to attend all kindergarten/school functions and activities, including extra-curricular activities, which parents are usually invited to attend; and

(d) to provide a copy of these orders to any kindergarten/school attended by X.

Notation: Neither parent admits conduct in the past or potential conduct in the future warranting order 12.

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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