GUNSON & RODMAN - [2015] FCCA 1169

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNSON & RODMAN

[2015] FCCA 1169

Catchwords:
FAMILY LAW – Parenting – parental responsibility – leave to relocate mother and child’s residence or to resume that which had previously existed – findings of controlling and manipulative behaviour by one parent – effect of such findings upon capacity to share parenting time and parental responsibility – concerns arising regarding reliance upon Family report – consideration of the provisions of section 60B(1) and (2) and section 60CC(2) and (3) – consideration of the effect upon the mother’s parenting ability if orders as sought by the father were made – determination that the best interests of the child were met by allowing the relocation as sought by the mother.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DA, 61C, 61D, 61DA, 65DAA(5), 65DAC, 65DAE

Jones & Dunkel (1959) 101 CLR 298
Heath & Hemming (No.2) [2011] FamCA 749
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MR GUNSON

Respondent:

MS RODMAN

File Number:

TVC 442 of 2009

Judgment of:

Judge Coker

Hearing dates:

5 & 6 February 2015

Date of Last Submission:

6 February 2015

Delivered at:

Townsville

Delivered on:

8 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hibble

Solicitors for the Applicant:

KLP Family Law

Counsel for the Respondent:

Mr Fellows

Solicitors for the Respondent:

Macdonnells Lawyers - (omitted)

Counsel for the Independent Children’s Lawyer:

Ms Keegan

Independent Children’s Lawyer:

M M Meehan

ORDERS

That all previous parenting Orders be discharged.
That the Mother and the Father have equal shared parental responsibility for decisions relating to the long-term and day-to-day care, welfare and development of the child, X born (omitted) 2002, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living…

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 GUNSON & RODMAN

Details

AGLC: Gunson and Rodman [2015] FCCA 1169
Case: [2015] FCCA 1169
Decision Date: 8 May 2015

CaseChat Overview and Summary

In the matter of Gunson & Rodman, heard by Judge Coker, the dispute concerned parenting orders for the child, X. The previous parenting orders were discharged.

The court was required to determine the arrangements for the child's long-term and day-to-day care, welfare, and development, including decisions regarding education, religious and cultural upbringing, health, and name. The court also had to consider the specific living arrangements for the child, the time the child would spend with each parent, and the associated costs of travel. Further issues included communication between the child and parents, parental conduct towards each other, international travel, discipline of the child, and the exchange of personal and medical information.

The court ordered that the Mother and Father have equal shared parental responsibility for long-term decisions. However, the Mother was to be responsible for the child's day-to-day care whilst the child was living with her, and the Father was to be responsible for the child's day-to-day care whilst the child was living with him. The child was ordered to live with the Mother in Sydney, and specific arrangements were made for the child to spend time with the Father during school holidays and on weekends, with provisions for travel costs and notice periods. The court also made orders regarding communication between the child and parents, prohibiting denigration of either parent, requiring mutual consent for international travel, and limiting discipline to the parents themselves. Both parents were ordered to keep each other informed of their contact details, medical practitioners, and any significant health issues concerning the child, and schools were authorised to provide information to both parents.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That the Mother and the Father have equal shared parental responsibility for decisions relating to the long-term and day-to-day care, welfare and development of the child, X born (omitted) 2002, including but not limited to:

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

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

(d) the child’s name.

That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

That notwithstanding Order 2 herein:

(a) The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and

(b) The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.

That the child live with the Mother in Sydney.

That the child spend time with the Father as agreed, but failing agreement, as follows:

(a) For the entire end of Terms 1, 2 and 3 New South Wales school holiday periods each year;

(b) For the first half of the New South Wales Christmas school holiday period in 2015 and each alternate year thereafter and for the second half of the New South Wales Christmas school holiday period in 2016 and each alternate year thereafter; and

(c) For one weekend in each school term, in the (omitted)/Sydney area, upon the Father providing at least 21 days’ notice to the Mother of his intention to spend such time with the child and that the Father be responsible for all costs incurred for activities and day to day living during this time with the child.

That for the purposes of the Father spending time with the child, the Father shall be responsible for the costs of the child travelling to the Father’s location to spend time with him in accordance with these Orders and the Mother shall be responsible for the costs of the child’s return travel to Sydney at the conclusion of the Father’s time with the child.

That the Mother be responsible for booking all flights.

That the Father reimburse the Mother half of the total costs of the transport of the child within 14 days of the booking.

10.

That the child communicate with both parents at all reasonable times as agreed between the parties by telephone, internet, Skype or any other similar means of communication, but failing agreement as follows:

(a) Mondays, Wednesdays and Fridays between 6:00pm and 6:30pm, according to the time in the locality that the child is living or spending time in, via telephone, internet, Skype or any other similar means of communication.

11.

That wherever possible, the Father take annual leave from his employment to coincide with the child’s visits to (omitted).

12.

That neither parent will denigrate the other parent or their family members in front of or in the hearing of the child, or allow another to do so.

13.

All international travel regarding the child is to be approved by both parents in writing or otherwise in accordance with Court Orders.

14.

But for the Father and the Mother, no other person, be it family member, friend or significant other be at liberty to discipline the child in whatsoever capacity.

15.

That the Mother and the Father shall:

(a) Keep the other parent informed at all times of their residential address, landline and mobile contact telephone numbers, and will notify the other parent within 24 hours of any change to these contact details;

(b) Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

16.

That the Mother and Father authorise, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.

17.

That the Independent Children’s Lawyer be discharged at the conclusion of any appeal period.

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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