Grande and Mort - [2014] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRANDE & MORT

[2014] FCCA 2072

Catchwords:
FAMILY LAW – Parenting – relocation – mother primary carer, both historically and currently – children settled in new environment – father can move – father refuses to move.

Legislation:

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

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant:

MR GRANDE

Respondent:

MS MORT

File Number:

MLC 2745 of 2012

Judgment of:

Judge Curtain

Hearing date:

11 August 2014

Date of Last Submission:

12 August 2014

Delivered at:

Melbourne

Delivered on:

12 September 2014

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

THE COURT ORDERS THAT:

All prior parenting orders be discharged.
The Report by Mr H undated but forwarded to the court on 11 August 2014 is admitted into evidence.
The father and the mother have equal shared parental responsibility for the children X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”), collectively (“the children”).
The children live with the mother.
The mother be permitted to relocate with the children to the State of Western Australia.
The children spend time with and communicate with the father as follows:
(a)for ten (10) days in each of the Western Australian school term holidays at times as agreed between the parties and failing agreement, the first ten (10) days from 10.00am the day after school ceases;
(b)for three (3) weeks in the Western Australian Christmas school holiday period being the last three (3) weeks in the 2014/2015 period and each alternate year thereafter and the first three (3) weeks in the 2015/2016 period and each alternate year thereafter;
(c)by telephone at least twice per week and by Skype/ webcam/ FaceTime at such times as agreed between the parties; and
(d)other and alternative times as otherwise agreed between the parties including any period that the mother visits the Melbourne and metropolitan area with the children, upon twenty eight (28) clear days’ notice to the father in writing.
For the purposes of the children spending time with the father as referred to in order 6(a) and 6(b) above:
(a)the father and the mother shall share equally the travel expenses with the father to make the booking arrangements after discussion with the mother;
(b)the father and the mother shall share the travelling with the children until they both reach an age when they can travel unaccompanied;
(c)arrangements in relation to order 6(a) and 6(b) above shall be as agreed between the parties; and
(d)the parties shall provide each other with an itinerary within seven (7) days of the proposed travel.
The father be at liberty to travel to Western Australia to spend time with the children:
(i)as agreed between the parties;
(ii)the father shall be responsible for his own travel expenses; and
(iii)the father shall provide at least twenty eight (28) clear days’ notice in writing…

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 Grande and Mort

Details

AGLC: Grande and Mort [2014] FCCA 2072
Case: [2014] FCCA 2072
Decision Date: 12 September 2014

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Curtain in the Federal Circuit Court of Australia. The dispute involved the father and mother of two children, X and Y, regarding their future care and living arrangements.

The court was required to determine the extent of parental responsibility, where the children would live, whether the mother could relocate with the children to Western Australia, and the specific arrangements for the children to spend time with and communicate with the father. The court also had to consider the admission of a report into evidence and address various ancillary orders concerning travel expenses, communication, notification of significant events, and the parents' conduct towards each other in the presence of the children.

The court ordered the discharge of all prior parenting orders and admitted a report into evidence. It made orders for equal shared parental responsibility, with the children to live with the mother. Crucially, the mother was permitted to relocate with the children to Western Australia. Detailed provisions were made for the children to spend time with and communicate with the father, including during school holidays and via electronic means. The court also stipulated arrangements for travel expenses, the father's ability to visit the children in Western Australia, and mutual obligations regarding communication, notification of significant events, and access to information about the children. Finally, the court made orders restraining the mother from encouraging the children to refer to anyone other than the father as "dad" or "daddy," and both parents were restrained from denigrating the other parent or their family members.

Orders

Orders of the court

THE COURT ORDERS THAT:

All prior parenting orders be discharged.

The Report by Mr H undated but forwarded to the court on 11 August 2014 is admitted into evidence.

The father and the mother have equal shared parental responsibility for the children X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”), collectively (“the children”).

The children live with the mother.

The mother be permitted to relocate with the children to the State of Western Australia.

The children spend time with and communicate with the father as follows:

(a) for ten (10) days in each of the Western Australian school term holidays at times as agreed between the parties and failing agreement, the first ten (10) days from 10.00am the day after school ceases;

(b) for three (3) weeks in the Western Australian Christmas school holiday period being the last three (3) weeks in the 2014/2015 period and each alternate year thereafter and the first three (3) weeks in the 2015/2016 period and each alternate year thereafter;

(d) other and alternative times as otherwise agreed between the parties including any period that the mother visits the Melbourne and metropolitan area with the children, upon twenty eight (28) clear days’ notice to the father in writing.

For the purposes of the children spending time with the father as referred to in order 6(a) and 6(b) above:

(a) the father and the mother shall share equally the travel expenses with the father to make the booking arrangements after discussion with the mother;

(b) the father and the mother shall share the travelling with the children until they both reach an age when they can travel unaccompanied;

(d) the parties shall provide each other with an itinerary within seven (7) days of the proposed travel.

The father be at liberty to travel to Western Australia to spend time with the children:

(i) as agreed between the parties;

(ii) the father shall be responsible for his own travel expenses; and

(iii) the father shall provide at least twenty eight (28) clear days’ notice in writing to the mother.

The father and the mother shall be at liberty to communicate with the children on a reasonable and regular basis when the children are with the other parent and the caring parent will facilitate the communication.

10.

The father and the mother shall ensure that the other is informed by telephone as soon as practicable should some event or situation arise concerning the health or wellbeing of the children whilst the children are in their care.

11.

The father and the mother shall promptly notify each other of any change of residential address, postal address and telephone number, as soon as it is determined.

12.

The father and the mother be at liberty and at their own respective cost to obtain school reports, school notices, medical reports and the like in relation to the children.

13.

The father and the mother be entitled to attend all of the children’s school, sporting or any other similar functions.

14.

The mother be and is hereby restrained from allowing, requesting or encouraging the children to refer to anyone as “dad” or “daddy” save for the applicant father.

15.

The father and the mother be and are hereby restrained from denigrating the other parent or their family members or partner to or within the hearing or presence of the children, or either one of them.

16.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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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