Happell and Pedder - [2013] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAPPELL & PEDDER

[2013] FCCA 1187

Catchwords:
FAMILY LAW – Parenting – Interim Property – long-running parenting contest – issues of significant geographical distance between parents – allegations of use of wrong medication – contest over property and disclosure of documents – objections to subpoena – discoverable documents – duty of full and prompt disclosure.

Legislation:

Family Law Act 1975, s.61DA

Federal Circuit Court Rules2001, Part 14, Part 15A

Australian Gaslight Company v The Australian Competition and Consumer Commission (2003) FCR 317; (2003) ATPR ¶41-966
Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
Hatton v the Attorney-General (2000) 26 Fam LR 570
Mulley v Manifold (1959) 103 CLR 341
National Employers’ Mutual General Insurance Association v Waind & Hill (1978) 1 NSWLR 37 (affirmed (1979) 141 CLR 648)
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
In the Marriage of Tate (2000) 26 Fam LR 731
Weir & Weir (1993) FLC 92-338

Applicant:

MR HAPPELL

Respondent:

MS PEDDER

File Number:

CAC 234 of 2011

Judgment of:

Judge Neville

Hearing date:

By written submissions

Date of Last Submission:

8 August 2013

Delivered at:

Canberra

Delivered on:

23 August 2013

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Solicitor/Advocate for the Respondent:

Mr S Cameron

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

ORDERS

Property Orders:

The objections to the subpoenae issued on 19 July 2013 be dismissed;
Leave is granted to all parties to inspect and photocopy all documents produced under subpoena;
The property matter be listed for final hearing on 25 October 2013 commencing at 10am before Judge Kelly in Canberra;

Parenting Orders:

All previous parenting Orders be discharged;
The Mother have sole parental responsibility in relation to all major long term issues for the children, X, born (omitted) 2002, Y, born (omitted) 2004, Z, born (omitted) 2005 and W, born (omitted) 2006 (“the children”);
The Father have responsibility for any day-to-day issues relating to the children when the children are in his care;
The children live with the Mother;
The children spend time with the Father as follows:
(a)Each alternate weekend commencing from the conclusion of school on Friday until 3:30pm on Sunday, and for the purposes of this Order the Father shall collect the children on Friday from their school and the Mother or her agent shall collect the children on Sunday from (omitted). If there is a long weekend, the children will be returned at 3.30pm on the Monday at the same changeover location;
(b)For half of the gazetted ACT school holidays, being the first half in 2013 and each alternate year thereafter, and the second half in 2014 and each alternate year thereafter;
(c)In even numbered years from 5:00pm on 23 December to 5:00pm on 24 December;
(d)When the Easter period falls outside the ACT gazetted term holidays, from Easter Thursday until 3:30pm on the following Easter Monday, in each alternate occasion;
(e)For…

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 Happell and Pedder

Details

AGLC: HAPPELL & PEDDER [2013] FCCA 1187
Case: [2013] FCCA 1187
Decision Date: 23 August 2013

CaseChat Overview and Summary

This matter concerned property and parenting disputes between Happell and Pedder, heard by Judge Neville. The court was required to determine objections to subpoenas issued on 19 July 2013 and to make final orders regarding the property and the parenting arrangements for the parties' four children.

The court was asked to consider the legal issues surrounding the admissibility of documents sought by subpoena and to make determinations on the future parental responsibility, living arrangements, and time spent between the children and each parent. Additionally, the court was to address communication protocols between the parents and the children, as well as information sharing regarding the children's schooling and medical care. Finally, the court was to consider injunctive relief to prevent abusive communications and social media postings related to the proceedings.

Judge Neville dismissed the objections to the subpoenas and granted leave for all parties to inspect and photocopy the documents produced. The court then made detailed parenting orders, discharging all previous orders. The Mother was granted sole parental responsibility for major long-term issues, while the Father was assigned responsibility for day-to-day issues when the children are in his care. The children were ordered to live with the Mother, with specific provisions for time spent with the Father, including alternate weekends, half of school holidays, Christmas Eve, Easter periods, and children's birthdays. The orders also established communication protocols, information sharing requirements regarding schooling and medical treatment, and mutual injunctions restraining abusive communications and social media postings. The property matter was adjourned for a final hearing.

Orders

Orders of the court

Property Orders:

The objections to the subpoenae issued on 19 July 2013 be dismissed;

Leave is granted to all parties to inspect and photocopy all documents produced under subpoena;

The property matter be listed for final hearing on 25 October 2013 commencing at 10am before Judge Kelly in Canberra;

Parenting Orders:

All previous parenting Orders be discharged;

The Mother have sole parental responsibility in relation to all major long term issues for the children, X, born (omitted) 2002, Y, born (omitted) 2004, Z, born (omitted) 2005 and W, born (omitted) 2006 (“the children”);

The Father have responsibility for any day-to-day issues relating to the children when the children are in his care;

The children live with the Mother;

The children spend time with the Father as follows:

(a) Each alternate weekend commencing from the conclusion of school on Friday until 3:30pm on Sunday, and for the purposes of this Order the Father shall collect the children on Friday from their school and the Mother or her agent shall collect the children on Sunday from (omitted). If there is a long weekend, the children will be returned at 3.30pm on the Monday at the same changeover location;

(b) For half of the gazetted ACT school holidays, being the first half in 2013 and each alternate year thereafter, and the second half in 2014 and each alternate year thereafter;

(d) When the Easter period falls outside the ACT gazetted term holidays, from Easter Thursday until 3:30pm on the following Easter Monday, in each alternate occasion;

(e) For the children’s birthdays, when the children are not already spending time with the father, from 3:00pm-7:00pm at the father’s discretion unless the Mother has arranged a birthday party within those times in which case the father may request the same time on the day preceding the birthday or the day following the birthday;

For the purposes of defining school holidays, the relevant period is from the last day of the school term until the first day of the following school term, with the children spending the last night of any school holiday period with the Mother;

10.

To facilitate time pursuant to Order 8 herein, the children are to be collected from school at the conclusion of school or from the Mother’s home if it is a non-school day, and return to the Mother or her agent at the (omitted);

11.

The time spent with the Father pursuant to Order 8.1 will be suspended during any school holiday period and such time will recommence after the school holiday period with the children spending time on the first weekend of the term with the parent with whom they spent the first half of the school holidays.

12.

The children shall communicate with the other parent by telephone and email when they are spending time with the other parent in accordance with the children’s wishes but no less than on two occasions each week. For that purpose each parent will do all reasonable acts and things necessary to facilitate and encourage the children to receive and make calls to the other parent.

13.

The parents are to do all things necessary to authorise the schools at which the children attend to make available to both parents all school reports and any relevant information or correspondence relating to the children.

14.

The Mother and Father shall do all things necessary to ensure the other party is kept informed at all times of their respective mobile telephone numbers, email address and residential address.

15.

The Mother is to keep the Father informed as soon as reasonably convenient, of any medical treatment (including consultations with any medical specialists) required by or proposed for the children.

16.

Both the Father and the Mother be hereby restrained by injunction from sending any abusive or derogatory or offensive messages to the mother by email, SMS text message, letter or by any other electronic means.

17.

Both the Father and the Mother be hereby restrained by injunction from posting any material on Facebook, or any other social networking site that refers to these proceedings, the other parent or any issue or allegation raised in this proceeding.

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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