Grella and Jamieson - [2016] FamCA 280

FAMILY COURT OF AUSTRALIA

GRELLA & JAMIESON

[2016] FamCA 280

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks to relocate with the four year old child to Europe – where the father opposes the relocation – where, in the alternative, the mother seeks to relocate to Melbourne –where the child’s time with her father has been somewhat sporadic –whether there is a benefit to the child of a meaningful relationship with her father – whether the child’s relationship with her father can be maintained and developed if the child relocates to Europe – where the mother’s application to relocate the child internationally is refused – where there is no substantive evidence to support a relocation to Melbourne – where the mother’s application to relocate the child to live in Melbourne is refused –the child’s time with her father.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537
McCall & Clark (2009) FLC 93-405

APPLICANT:

Ms Grella

RESPONDENT:

Mr Jamieson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

LEC

126

2012

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 and 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Priestley SC

SOLICITOR FOR THE APPLICANT:

Crane Paskins Law

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

IT IS ORDERED THAT

All previous Orders and parenting plans are discharged.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The child, B, born … 2011, live with the mother in South East Queensland.
The mother have sole parental responsibility for the major long term issues for the child including in respect of:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)changes to the child’s living arrangements save for any which make it significantly more difficult for the child to spend time with each parent.
Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
(b)the mother shall give the father fourteen (14) days to respond; and
(c)the mother shall consider the father’s views/response when coming to her decision; and
(d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Each parent has responsibility for the day to day care, welfare and development of the child while she is in his or her care.
The father shall spend time with the child at all such times…

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 Grella and Jamieson

Details

AGLC: Grella and Jamieson [2016] FamCA 280
Case: [2016] FamCA 280
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the matter of *Grella and Jamieson*, Hogan J made final orders concerning the parenting of a child, B. The dispute involved the living arrangements and parental responsibilities for B, with the court ultimately determining the terms of the child's residence, the allocation of parental responsibility for long-term decisions, and the specific times the child would spend with each parent.

The court was required to determine the primary residence of the child, B, and to allocate parental responsibility for significant long-term issues, including education, religious and cultural upbringing, health, and changes to living arrangements. Additionally, the court had to establish a detailed schedule for the child's time with the father, including provisions for weekends, school holidays, and special occasions such as Christmas and Father's Day, as well as outlining communication protocols and dispute resolution mechanisms.

Hogan J ordered that B live with the mother in South East Queensland and granted the mother sole parental responsibility for major long-term issues, subject to a requirement to consult with the father in writing regarding such decisions. The father was granted specific, progressively increasing periods of time with the child, including alternate weekends and extended periods during school holidays, with detailed provisions for communication and changeovers. The orders also included specific restraints on removing the child from Australia until December 2017 and directed the Australian Federal Police to place the child on the Family Law Watchlist. All previous orders and parenting plans were discharged, and outstanding applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

All previous Orders and parenting plans are discharged.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

The child, B, born … 2011, live with the mother in South East Queensland.

The mother have sole parental responsibility for the major long term issues for the child including in respect of:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(d) changes to the child’s living arrangements save for any which make it significantly more difficult for the child to spend time with each parent.

Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and

(b) the mother shall give the father fourteen (14) days to respond; and

(d) the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

Each parent has responsibility for the day to day care, welfare and development of the child while she is in his or her care.

The father shall spend time with the child at all such times as may be agreed between the parties in writing and failing agreement as follows:

(a) commencing on 30 April 2016: each alternate weekend from 9.00am to 2.00pm on each of Saturday and Sunday; and then

(b) commencing 25 June 2016: each alternate weekend from 9.00am to 4.00pm on Saturday; and from 9.00am to 2.00pm on Sunday; and then

(d) commencing 12 November 2016: each alternate weekend from 9.00am Saturday until 12.00pm Sunday; and then

(e) commencing January 2017: each alternate weekend from 9.00am Saturday until 4.00pm Sunday.

After June 2017, the time the child shall spend with her father pursuant to Clause 6(e) shall, during any Queensland gazetted school holiday period, be extended such that, instead of concluding at 4.00pm on Sunday it shall conclude:

(a) from the start of Term 3, 2017: at 12.00pm on the Monday; and

(b) from the start of Term 1, 2018: at 12.00pm on the Tuesday; and

(d) from the start of Term 1, 2020: at 12.00pm on the Thursday.

From the start of Term 2, 2021, the child shall spend time with the father for half of each Queensland gazetted school holiday period as follows:

(a) in even numbered years:

i. for the first week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the first Saturday after the conclusion of the school Term; and

ii. for the first week of the December/January Queensland gazetted school holiday period and each alternate week thereafter, starting on the first Saturday after the conclusion of the school Term; and

(b) in odd numbered years:

i. for the second week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the second Saturday after the conclusion of the school Term; and

ii. for the second week of the December/January Queensland gazetted school holiday period and each alternate week thereafter starting on the second Saturday after the conclusion of the school Term.

In the event the child is in Australia for Christmas Day, she shall spend time with her father:

(a) in even numbered years: from 9.00am on Christmas Eve (24 December) until 12.00pm on Christmas Day (25 December); and

(b) in odd numbered years: from 12.00pm on Christmas Day (25 December) until 4.00pm on Boxing Day (26 December).

10.

In the event that pursuant to this Order, the child would not otherwise be spending time with her father on the weekend on which Father’s Day occurs, and he is able to facilitate such time, she shall spend time with him that day from 9.00am to 4.00pm.

11.

In the event that, pursuant to this Order, the child would not otherwise be living with the mother on the weekend on which Mother’s Day occurs, she shall be returned to her mother at 9.00am on that day.

12.

Unless otherwise agreed between the parties in writing, changeovers shall occur:

(a) until 1 December 2016: at the Region C Contact Centre; and

(b) from 1 December 2016: at McDonald’s Restaurant Suburb D.

13.

Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

14.

The costs of the changeovers at the Contact Centre shall be met by the father.

15.

Neither parent shall approach the other, or that parent’s servant or agent, during changeover.

16.

Each parent shall facilitate the child communicating with the other by telephone or Skype communication at all reasonable times as requested by the child and no less than two occasions every week with each parent to:

(a) ensure that the child is available to receive the telephone call; and

(b) arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstances, the child misses the telephone call from that parent; and

17.

Each parent shall facilitate the child communicating with the parent, with whom she is not then staying by telephone or Skype on the child’s birthday, with such communication to occur in the manner prescribed by Clause 16.

18.

Neither parent shall consume any illicit substance at any time when the child is in his or her care or within 24 hours prior to the child coming into his or her care, and shall immediately remove the child from any place in which any person is consuming illicit substances.

19.

Neither parent shall enrol the child in any activity which occurs during time she is living or spending time with the other parent without first obtaining the written consent of that parent.

20.

From December 2017, the mother is at liberty to suspend the child’s time with her father for a period of up to four (4) weeks during the end of year school holiday period each year for the purpose of removing the child from the Commonwealth of Australia for a holiday provided that:

(a) no less than sixty (60) days prior to the proposed travel, the mother provide the father notice in writing of the proposed dates of departure from and return to Australia, the locations to be visited and the details of the accommodation at which the child will be staying; and

(b) in even numbered years: the date of departure shall not occur before 27 December; and

(c) not less than fourteen (14) days prior to the scheduled departure, the mother shall provide the father with a copy of the itinerary for the trip with this to include, but not be limited to, the following information: the departure and return times and dates; a contact telephone number for the child whilst she is travelling and details of addresses at which the child will be based during the travel; and

(d) when the child is out of the Commonwealth of Australia, the mother shall facilitate the child’s communication with the father in accordance with the terms of Clause 16 of these Orders.

21.

In the event the mother does not remove the child from the Commonwealth of Australia pursuant to Clause 20 of these Orders, the child shall continue to spend time with the father as provided for in Clauses 7 and 8.

22.

In the event the mother removes the child from the Commonwealth of Australia in accordance with Clause 20 of these Orders:

(a) the child’s time with her father pursuant to Clauses 7 and 8 shall be suspended during the time the child is out of the Commonwealth of Australia ; and

(b) instead of spending time with the father as provided by Clauses 7 and 8, the child shall spend time with the father during those weeks of the December/January gazetted school holiday period she is present in Australia in the following manner:

i. in the holiday period commencing December 2017: for three non-consecutive periods of two nights; and

ii. in the holiday period commencing December 2018: for three non-consecutive periods of three nights; and

iii. in the holiday period commencing December 2019: for two non-consecutive periods of four nights; and

iv. in the holiday period commencing December 2020: for two non-consecutive periods of five nights; and

v. in the holiday period commencing December 2021, and for all subsequent years: for two non-consecutive periods of seven nights.

23.

For the purpose of the child’s time with her father pursuant to Clause 22b, the father is to provide the mother no less than fourteen (14) days’ notice in writing of those dates during which he wishes to spend time with the child and, unless otherwise agreed, the time shall occur between those dates.

24.

Unless otherwise agreed between the parties in writing, or otherwise specified in these Orders, the child’s time with her father shall commence at 9.00am and conclude at 4.00pm.

25.

Each parent shall:

(a) keep the other informed at all times of their residential address, telephone numbers, mobile numbers and email addresses and notify the other of any changes to the same within three (3) days of such change; and

(b) keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and

(c) inform the other as soon as is reasonable practicable of any serious medical condition, or significant health issue suffered by the child; and

(d) keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.

26.

By this Order, the parents authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

27.

By this Order, any school at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation including copies of any school reports, newsletters, applications for class photographs and the like and any information in relation to the child’s educational and social progress.

28.

By this Order, any day care centre or before or after school care facility at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation.

29.

During the time the child is with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the child about the personal life of the other parent; and

(b) speak of the other parent respectfully; and

(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the child; and

(d) use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

30.

The process used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:

(a) the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the child; and

(b) they shall pay the costs of the Family Dispute Resolution Practitioner equally; and

(c) in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and

(d) the father shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and

(e) if the father fails to choose one of the listed practitioners within the prescribed time, then the mother may choose one of the listed practitioners.

31.

Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order each parent shall take the steps referred to in Clause 30 of this Order.

32.

Each of Ms Grella born … 1984 and Mr Jamieson, born … 1980 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B, a female born … 2011, from the Commonwealth of Australia before 1 December 2017.

33.

B, a female born … 2011, is hereby restrained from leaving the Commonwealth of Australia before 1 December 2017.

34.

It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 1 December 2017.

35.

Upon expiration of the period referred to in Clause 34 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.

36.

Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child B, a female born … 2011 is permitted to have an Australian travel document.

37.

The Independent Children’s Lawyer is discharged.

38.

All outstanding applications are otherwise dismissed.

39.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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.