Halifax and Fabian - [2010] FamCA 1212

FAMILY COURT OF AUSTRALIA

HALIFAX & FABIAN

[2010] FamCA 1212

FAMILY LAW – CHILDREN – Same-sex parents – Definition of “parent” – Relocation

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

AMS v AIF (1999) HCA 26
Chappell and Chappell (2008) FLC 93-382
Mazorski and Albright [2007] FamCA 520
McCall v Clark (2009) FamCAFC 92
MRR v GR (2010) 263 ALR 368
Mathers & Mathers [2008] FamCA 856
R and R: Children’s wishes (2000) FamCA 43
Sampson and Hartnett (No 12) (2007) FLC 93-350
Simpson and Brockmann [2010] FamCAFC 37
Taylor and Barker [2007] FamCA 1246

APPLICANT:

Ms Halifax

RESPONDENT:

Ms Fabian

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

737

2009

DATE DELIVERED:

24 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

29 APRIL 2010; 15, 16 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR LINKLATER-STEELE

SOLICITOR FOR THE APPLICANT:

PARKER FAMILY LAW

COUNSEL FOR THE RESPONDENT:

DR SAYERS

SOLICITOR FOR THE RESPONDENT:

SBA LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR ANDREWS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

LEGAL AID QUEENSLAND

Orders

That all existing parenting orders are forthwith discharged.
That Ms Halifax and Ms Fabian have equal shared parental responsibility for the children Y born … July 2002 and X born … June 2006.
That for the purposes of s 65DAC of the Family Law Act 1975, the obligation to consult shall be fulfilled by the parties communicating in writing to one another but in the event of a disagreement, they shall arrange either a mediation or attend upon a family dispute practitioner before issuing any further legal proceedings arising out of such a dispute.
That Y live with Ms Halifax.
That X live with Ms Fabian.
That until 31 December 2011, Ms Fabian be restrained from permitting X to live on the Central Coast of New South Wales.
That until 31 December 2011, unless otherwise agreed, Y spend time with Ms Fabian as follows:
(a)during each alternate weekend from the conclusion of school on Friday to 5 pm on the following Sunday; and
(b)for one half of all school holidays by agreement and in default of agreement, the first half commencing with the first school term in 2011.
That until 31 December 2011, X spend time with Ms Halifax as follows:
(a)During each alternate weekend from the conclusion of school on Friday to 5 pm on the following Sunday; and
(b)For one half of all school holidays by agreement and in default of agreement, the second half commencing with the first school term in 2011.
For the purposes of paragraphs 7 and 8, the alternate weekends shall commence by agreement but failing agreement, paragraph 7(a) shall commence on the first weekend after the children’s school commences in 2011 and paragraph 8(a) shall commence one week later.
For the avoidance of doubt and for the purposes of paragraphs 7 and 8, it is the intention…

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 Halifax and Fabian

Details

AGLC: Halifax and Fabian [2010] FamCA 1212
Case: [2010] FamCA 1212
Decision Date: 24 December 2010

CaseChat Overview and Summary

In the matter of *Halifax and Fabian*, heard by Justice Cronin, the court was required to determine parenting arrangements for two children, Y and X. The dispute concerned the future care and time arrangements for the children, including where they would live and how time would be spent with each parent.

The court was tasked with determining the extent of shared parental responsibility, the specific living arrangements for each child, and the time each child would spend with the non-resident parent. Further issues included the geographical restrictions on one parent's residence, the method of communication for decision-making, and the arrangements for counselling and dispute resolution. The court also had to consider future arrangements should one parent relocate.

Justice Cronin discharged all existing parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with different parents, with specific time arrangements detailed for weekdays, weekends, and school holidays, designed to ensure the children spent time together. The court also imposed a geographical restriction on one parent and mandated written communication for decision-making, with mediation or family dispute resolution required in the event of disagreement. The orders included provisions for counselling to assist the parties and children, and detailed future arrangements contingent on a potential relocation. The court also made orders regarding communication, health updates, and the discharge of the Independent Children's Lawyer.

Orders

Orders of the court

That all existing parenting orders are forthwith discharged.

That Ms Halifax and Ms Fabian have equal shared parental responsibility for the children Y born … July 2002 and X born … June 2006.

That for the purposes of s 65DAC of the Family Law Act 1975, the obligation to consult shall be fulfilled by the parties communicating in writing to one another but in the event of a disagreement, they shall arrange either a mediation or attend upon a family dispute practitioner before issuing any further legal proceedings arising out of such a dispute.

That Y live with Ms Halifax.

That X live with Ms Fabian.

That until 31 December 2011, Ms Fabian be restrained from permitting X to live on the Central Coast of New South Wales.

That until 31 December 2011, unless otherwise agreed, Y spend time with Ms Fabian as follows:

(a) during each alternate weekend from the conclusion of school on Friday to 5 pm on the following Sunday; and

(b) for one half of all school holidays by agreement and in default of agreement, the first half commencing with the first school term in 2011.

That until 31 December 2011, X spend time with Ms Halifax as follows:

(a) During each alternate weekend from the conclusion of school on Friday to 5 pm on the following Sunday; and

(b) For one half of all school holidays by agreement and in default of agreement, the second half commencing with the first school term in 2011.

For the purposes of paragraphs 7 and 8, the alternate weekends shall commence by agreement but failing agreement, paragraph 7(a) shall commence on the first weekend after the children’s school commences in 2011 and paragraph 8(a) shall commence one week later.

10.

For the avoidance of doubt and for the purposes of paragraphs 7 and 8, it is the intention of the Court that during each such period, the two children will be together.

11.

For the purposes of determining when school holidays commence and end for 2011, unless otherwise agreed, they shall commence at 10 am on the day after school ceases for the term or year and shall end at 10 am on the day before the child returns to school.

12.

That during the school year 2011, subject only to any contrary views held by the principal, X shall attend S Catholic School.

13.

That as soon as practicable, Ms Halifax and Ms Fabian and to the extent necessary the children, attend upon and at the direction of, a counsellor during the year 2011, to be nominated by Ms L but to be organised by the Independent Children’s Lawyer at the joint expense of Ms Halifax and Ms Fabian, to:

(a) discuss the implementation of these orders;

(b) endeavour to improve the communication relationship between Ms Halifax and Ms Fabian;

(c) deal with the impact of these orders on the children and in particular their respective relationships with each of the parties; and

(d) provide counselling for the parties generally.

14.

That for the purposes of paragraph 13 of these orders, copies of the orders this day and the reasons for judgment be made available by the Independent Children’s Lawyer to:

(a) Ms L; and

(b) the nominated counsellor.

15.

That Ms Halifax and Ms Fabian do all things necessary to facilitate the children speaking to each other and to the other parent on one night per week at times by agreement and failing agreement, on Wednesdays at 7 pm.

16.

That until 31 December 2011, each parent collect the relevant child from the child’s school at the commencement of their period and return her to the other parent at that parent’s residence at the conclusion of the relevant period. If because of school holidays or for any reason brought about by the school, the relevant child is not at school on the Friday, the parent with whom the child lives has an obligation to deliver the child to the other parent at the relevant time at that other parent’s residence.

17.

That in the event that the respective parents cannot determine a contact regime for special days during 2011, they may seek the Court determine those matters by written submission served upon the other parent but not the Independent Children’s Lawyer, such submissions to be sent to Justice Cronin for determination in chambers.

18.

That after completion of the matters otherwise set out in these orders, the Independent Children’s Lawyer be discharged from the proceedings.

19.

That if after 31 December 2011, Ms Fabian does not move to the Central Coast of New South Wales with X, the arrangements set out in paragraphs 7 and 8 shall continue until the parties otherwise agree.

20.

That if after 31 December 2011, Ms Fabian moves to the Central Coast of New South Wales, the following shall apply:

(a) X spend time with Ms Halifax as follows:

(i) during one weekend per term in Brisbane from 6 pm on the Friday (or at such other time as is practicable on the Friday having regard to flights from Newcastle to Brisbane) to 10 am on the following Sunday and for this purpose, the handover point shall be the residence of Ms Halifax;

(ii) for one half of all school holidays by agreement and in default of agreement, subject to paragraph 21, the first half commencing with the first school term in 2012 and for this purpose, the handover point shall be the residence of Ms Halifax.

(b) Y spend time with Ms Fabian as follows:

(i) during the weekend in Brisbane referred to in paragraph 20(a) from 10 am to 4 pm on the Sunday and for this purpose, the handover point shall be the residence of Ms Halifax ;

(ii) for one half of all school holidays by agreement and in default of agreement, subject to paragraph 21, the second half commencing with the first school term in 2012 and for this purpose, the handover point shall be the residence of Ms Fabian.

21.

That for the purposes of determining holidays in circumstances where the States of New South Wales and Queensland have different terms, the holidays shall be deemed to commence with whichever State begins those holidays first and conclude when that State’s holidays and the arrangements referred to in paragraph 20 shall be adjusted so that the children each spend an equal amount of time together with each parent.

22.

That the costs of the children’s (as distinct from the adults’ travel) travel for the trips referred to in paragraph 20 shall be as follows:

(a) For the trip during the term to Brisbane, all travel costs shall be borne by Ms Fabian;

(b) For the trips during school holidays, all airline expenses shall be equally borne.

23.

That subject to Ms Fabian moving to New South Wales, Ms Halifax and Ms Fabian do all things necessary to facilitate the children speaking to each other and to the other parent by Skype on one night per week at times by agreement and failing agreement, on Wednesdays at 7 pm together with a similar conversation on each child’s birthday, each mother’s birthday, each Mothers’ Day and each Christmas Day.

24.

That for the purposes of paragraph 23 each of Ms Fabian and Ms Halifax do all things necessary to ensure that they have computer and internet facilities connected to enable the necessary Skype operation to occur and each shall take alternate turns to make the communication call.

25.

That each parent keep the other informed of all illnesses and accidents involving the children other than simple problems that do not require medical attention.

26.

That all applications save as to any application for costs be otherwise dismissed.

IT IS CERTIFIED:

27.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

28.

That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto 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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