Green and Green - [2018] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREEN & GREEN

[2018] FCCA 2214

Catchwords:
FAMILY LAW – Interim parenting – mother unilaterally changed children’s school and moved suburbs – whether or not children should return to their former school – parenting arrangements.

Legislation:

Family Law Act 1975 s.65DAA

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Morgan v Miles (2008) Fam LR 275
U & U (2002) 211 CLR 238
Goode & Goode (2006) FLC 93-286

Applicant:

MR GREEN

Respondent:

MS GREEN

File Number:

MLC 8320 of 2018

Judgment of:

Judge Harland

Hearing date:

10 August 2018

Date of Last Submission:

10 August 2018

Delivered at:

Melbourne

Delivered on:

10 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Trim

Solicitors for the Applicant:

Schembri & Co Lawyers

Counsel for the Respondent:

Mr Mort

Solicitors for the Respondent:

Berger Kordos Lawyers

ORDERS

The proceeding is adjourned for Mention Hearing on 15 August 2018 at 9.00am.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >
The parents have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2009 (“the children”).
The parents forthwith do all acts and things to re-enrol the children at School A, and to cancel the children’s enrolment at School B.

In the event the mother returns to Suburb D:

The children live with the mother and the father on an equal week about basis pending further order.
If the mother wishes to live in the former matrimonial home at Property A, (“the former matrimonial home”) she have sole occupation of that property.

In the event the mother does not return to Suburb D:

The children live with the father.
The children spend time with the mother on alternate weeks from after school on Thursdays until before school on Monday.

THE COURT ORDERS, BY CONSENT, THAT:

The children spend half of all school holidays with each parent as agreed in writing and failing this on a week about agreement.
If the children are in the care of the father on the following occasions, the children spend time with the mother as follows:
(a)On Mother’s Day from 6:00pm the day before Mother’s Day to the commencement of school the day after Mother’s Day;
(b)On the children’s birthday as agreed between the parties, and failing agreement for a period of 3 hours on a school day and for a period of 4 hours on a non-school day;
(c)On the mother’s birthday as agreed between the parties, and failing agreement from 4:00pm until 7:00pm on a school day and from 10:00am until 2:00pm on a non-school day;
(d)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in even numbered years commencing in 2018;
(e)From 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years commencing in 2019; and
(f)On other such special occasions as agreed between the parties in writing.
If the children are in the care of the mother on…

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 Green and Green

Details

AGLC: Green and Green [2018] FCCA 2214
Case: [2018] FCCA 2214
Decision Date: 10 August 2018

CaseChat Overview and Summary

This matter concerned orders made by Judge Harland in the Federal Circuit Court of Australia, by consent, between the parents of two children, [X] and [Y]. The dispute revolved around parenting arrangements for the children, including their residence, time spent with each parent, and educational matters.

The court was required to determine the specific parenting orders to be made, addressing issues of equal shared parental responsibility, the children's schooling, and their living arrangements based on the mother's potential return to a particular suburb. Further, the court needed to establish detailed provisions for the children's time with each parent during school holidays, special occasions, and for communication between parents and children. The court also noted the father's ability to rely on his mother for childcare assistance if work commitments prevented him from personally caring for the children.

The court's reasoning was based on the consent of both parties, leading to the making of specific orders that reflected their agreement. These orders established equal shared parental responsibility and mandated the re-enrolment of the children at their previous school. The court then outlined conditional living arrangements for the children, contingent on the mother's decision to return to Suburb D, with provisions for equal week-about care or sole residence with the father. Detailed arrangements were also made for school holidays, special days, and communication, alongside orders for parents to complete post-separation parenting courses and engage in counselling. The father was also directed to file further documents concerning property matters.

Orders

Orders of the court

The proceeding is adjourned for Mention Hearing on 15 August 2018 at 9.00am.

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017

The parents have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2009 (“the children”).

The parents forthwith do all acts and things to re-enrol the children at School A, and to cancel the children’s enrolment at School B.

In the event the mother returns to Suburb D:

The children live with the mother and the father on an equal week about basis pending further order.

If the mother wishes to live in the former matrimonial home at Property A, (“the former matrimonial home”) she have sole occupation of that property.

In the event the mother does not return to Suburb D:

The children live with the father.

The children spend time with the mother on alternate weeks from after school on Thursdays until before school on Monday.

THE COURT ORDERS, BY CONSENT, THAT:

The children spend half of all school holidays with each parent as agreed in writing and failing this on a week about agreement.

10.

If the children are in the care of the father on the following occasions, the children spend time with the mother as follows:

(a) On Mother’s Day from 6:00pm the day before Mother’s Day to the commencement of school the day after Mother’s Day;

(b) On the children’s birthday as agreed between the parties, and failing agreement for a period of 3 hours on a school day and for a period of 4 hours on a non-school day;

(c) On the mother’s birthday as agreed between the parties, and failing agreement from 4:00pm until 7:00pm on a school day and from 10:00am until 2:00pm on a non-school day;

(d) From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in even numbered years commencing in 2018;

(e) From 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years commencing in 2019; and

(f) On other such special occasions as agreed between the parties in writing.

11.

If the children are in the care of the mother on the following occasions, the children spend time with the father as follows:

(a) On Father’s Day from 6:00pm the day before Father’s Day to the commencement of school the day after Father’s Day;

(b) On the children’s birthday as agreed between the parties, and failing agreement for a period of 3 hours on a school day and for a period of 4 hours on a non-school day;

(c) On the father’s birthday as agreed between the parties, and failing agreement from 4:00pm until 7:00pm on a school day and from 10:00am until 2:00pm on a non-school day;

(d) From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in odd numbered years commencing in 2019;

(e) From 3:00pm on Christmas Day until 3:00pm on Boxing Day in even numbered years commencing in 2018; and

(f) Such other special occasions as agreed between the parties in writing.

12.

Each parent is to have reasonable telephone time with the children during the times that the children are in the care of the other parent between the hours of 6:30pm and 7:00pm, or at such other times as the parties may agree.

13.

Each party keep the other party informed, by way of text message, of any accident or injury to a child or the children while in their respective care, advising the nature of the injury and providing the name and contact details of any medical practitioner attending upon the child/children.

14.

Each party forthwith enrol in and complete a post-separation parenting course.

15.

Each parent engage in counselling regarding their personal issues.

16.

The father file an amended initiating application joining property issues, affidavit, and financial statement on or before 7 September 2018.

17.

The mother file a response, affidavit and financial statement on or before 5 October 2018.

AND THE COURT NOTES THAT:

A. If the father’s work commitments mean that he is physically unable to care for the children during their scheduled time with him, he shall be permitted to rely upon his mother for assistance in this regard.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.