Handley and Handley - [2013] FCCA 1278

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANDLEY & HANDLEY

[2013] FCCA 1278

Catchwords:
FAMILY LAW – Parenting – best interests of the child – relocation.

Legislation:

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

AMS v AIF (1999) FLC ¶92-852
Cales & Cales (2010) FLC 93-459
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
M & S (2007) FLC 93-313

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Sampson & Hartnett (No.10) (2007) FLC 93-350
Sayer & Radcliffe [2012] FamCAFC 209
Taylor & Barker (2007) FLC 93-345

Applicant:

MS HANDLEY

Respondent:

MR HANDLEY

File Number:

HBC 509 of 2012

Judgment of:

Judge Baker

Hearing dates:

30 and 31 July 2013

Date of Last Submission:

31 July 2013

Delivered at:

Hobart

Delivered on:

6 September 2013

REPRESENTATION

Counsel for the Applicant:

Ms Ryan

Solicitors for the Applicant:

PWB Lawyers

Counsel for the Respondent:

Mr Turnbull

Solicitors for the Respondent:

Ogilvie Jennings

ORDERS:

(1)Ms Handley (“the mother”) and Mr Handley (“the father”) have equal shared parental responsibility of the children X born (omitted) 2005 (“X”), Y born (omitted) 2008 (“Y”) and Z born (omitted) 2009 (“Z”).
(2)The children live with the mother.
(3)The children spend time and communicate with the father as follows:
(a)Each alternate weekend from Friday at 6.00pm to Sunday at 6.00pm (extending to Monday at 6.00pm if Monday is a student-free day).
(b)By telephone on 2 occasions per week.

BY CONSENT, THE COURT ORDERS THAT:

The parties agree the special occasion orders as follows:
(4)That the parents share care of the children during school holiday periods on a week about basis as agreed, but failing agreement:
(a)For the Term 1 and Term 2 holidays the children will be in the father’s care for the first half of the holiday and in the mother’s care for the second half of the holiday.
(b)For the Term 3 holidays the children will be in the father’s care for the second half of the school holiday periods and will be in the mother’s care for the first half with the mother.
(c)For Christmas school holiday periods on a week about basis between each parent’s home, excepting the special arrangements for Christmas pursuant to paragraph 5 below.
(5)Fathers Day – if not otherwise in his care the children will be in the father’s care on the Fathers Day weekend from 5pm Saturday to 5pm Sunday.
(6)Mothers Day – if not otherwise in her care the children will be in the mother’s care on the Mothers Day weekend from 5pm Saturday to 5pm Sunday.
(7)Christmas:
(a)In 2013 and each alternate year the children will be in the father’s care from the day after Term 4 ends to 4.00pm Christmas Day
(b)In 2013 and each alternate year the children will be in the mother’s care from 4pm Christmas Day to 4 pm 27 December.
(c)In 2014 and each alternate year the children will be…

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 Handley and Handley

Details

AGLC: Handley and Handley [2013] FCCA 1278
Case: [2013] FCCA 1278
Decision Date: 6 September 2013

CaseChat Overview and Summary

This matter concerned an application by the mother and father, Ms Handley and Mr Handley, for orders regarding the parental responsibility and time spent with their three children, X, Y, and Z. The decision was made by Judge Baker.

The court was required to determine the arrangements for the children's living situation, the extent of shared parental responsibility, and the specific times the children would spend with each parent, including during weekends, weekdays, and school holidays. The parties sought to formalise these arrangements by consent.

Judge Baker made orders reflecting the parties' agreement. The children were to have equal shared parental responsibility between the mother and father, and they were to live with the mother. The father was to have the children on alternate weekends, with provisions for extended time if Monday was a student-free day, and to communicate with them by telephone twice weekly. The orders also detailed a comprehensive schedule for school holidays, including Christmas and Easter, and specific arrangements for Father's Day and Mother's Day, all by consent of the parties.

Orders

Orders of the court

(1) Ms Handley (“the mother”) and Mr Handley (“the father”) have equal shared parental responsibility of the children X born (omitted) 2005 (“X”), Y born (omitted) 2008 (“Y”) and Z born (omitted) 2009 (“Z”).

(2) The children live with the mother.

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

(a) Each alternate weekend from Friday at 6.00pm to Sunday at 6.00pm (extending to Monday at 6.00pm if Monday is a student-free day).

(b) By telephone on 2 occasions per week.

BY CONSENT, THE COURT ORDERS THAT:

The parties agree the special occasion orders as follows:

(4) That the parents share care of the children during school holiday periods on a week about basis as agreed, but failing agreement:

(a) For the Term 1 and Term 2 holidays the children will be in the father’s care for the first half of the holiday and in the mother’s care for the second half of the holiday.

(b) For the Term 3 holidays the children will be in the father’s care for the second half of the school holiday periods and will be in the mother’s care for the first half with the mother.

(c) For Christmas school holiday periods on a week about basis between each parent’s home, excepting the special arrangements for Christmas pursuant to paragraph 5 below.

(5) Fathers Day – if not otherwise in his care the children will be in the father’s care on the Fathers Day weekend from 5pm Saturday to 5pm Sunday.

(6) Mothers Day – if not otherwise in her care the children will be in the mother’s care on the Mothers Day weekend from 5pm Saturday to 5pm Sunday.

(7) Christmas:

(a) In 2013 and each alternate year the children will be in the father’s care from the day after Term 4 ends to 4.00pm Christmas Day

(b) In 2013 and each alternate year the children will be in the mother’s care from 4pm Christmas Day to 4 pm 27 December.

(c) In 2014 and each alternate year the children will be in the father’s care from 4pm Christmas Day to 4 pm 27 December.

(d) In 2014 and each alternate year the children will be in the mother’s care from the day after Term 4 ends to 4.00pm Christmas Day.

(8) Easter:

(a) In 2014 and each alternate year the children will be in the father’s care from 6pm Easter Thursday to 6pm Easter Monday.

(b) In 2015 and each alternate year the children will be in the mother’s care from 6pm Easter Thursday to 6pm Easter Monday.

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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