HARRIS & DUERR - [2014] FamCA 127

FAMILY COURT OF AUSTRALIA

HARRIS & DUERR

[2014] FamCA 127

FAMILY LAW – CHILDREN – Relocation – Where the parties met, married and had the children in the mother’s country of origin – Where the mother seeks to return to her country of origin – Equal Shared Parental Responsibility – Where the presumption is rebutted – Family Violence – Meaningful relationship – Where the court is satisfied that should the mother be permitted to relocate it would adversely affect the children’s relationship with the father – Where the father seeks that the children change school – Where an order is made conferring sole parental responsibility on the mother in relation to the education of the children – With whom the children live – With whom the children spend time –Where an order is made for the children to live with the mother – Where an order is made for the children to spend time with the father – Where the mother’s application for relocation is denied.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65DAA, 65DAC

B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Heath & Hemming (No 2) [2011] FamCA 749
Preston & Preston [2011] FamCA 618

APPLICANT:

Mr Harris

RESPONDENT:

Ms Duerr

INDEPENDENT CHILDREN’S LAWYER:

Patricia Keyworth

FILE NUMBER:

BRC

7472

2011

DATE DELIVERED:

14 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16 & 17 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Hartnett Lawyers Group

FOR THE RESPONDENT:

Ms Duerr in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Keyworth Harris & Lowe
Family Lawyers

Orders

That save as otherwise provided for herein, the mother and the father shall have shared parental responsibility for the children, L born … June 2004 and N born … August 2007 (“the children”).
That notwithstanding paragraph 1 hereof, the mother shall have sole parental responsibility for the children where the exercise of that parental responsibility involves making a decision about the particular school that the children or either of them shall attend, subject to the mother:
(a)Writing to the father and informing him of such a decision having to be made, proposing options to him as to how that decision might be made, and asking him for his views or proposals as to how the decision should be made and to send her any such views or proposals in writing, or, if she requests, to tell her of any such views or proposals; and
(b)Considering and taking into account any views or proposals about the decision to be made that have been expressed to her by the father; and
(c)Advising the father in writing of the decision that she actually makes, including as to the reasons why she made that decision.
That the children live with the mother provided she continues to live with them in Brisbane, Queensland.
That the children spend time with the…

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 HARRIS & DUERR

Details

AGLC: HARRIS & DUERR [2014] FamCA 127
Case: [2014] FamCA 127
Decision Date: 14 March 2014

CaseChat Overview and Summary

This matter concerned orders made by Forrest J regarding the parental responsibility, living arrangements, and time spent with the children, L and N, by their mother and father. The dispute centred on how parental responsibilities should be shared, particularly concerning decisions about the children's schooling, and the specific arrangements for the children to live with the mother and spend time with the father.

The court was required to determine the extent of shared parental responsibility between the mother and father, and to make specific orders regarding the children's residence and the father's time with them. Further issues included provisions for the children's schooling, holiday arrangements, communication between parents and children, and the father's conduct while the children are in his care. The court also needed to address the children's counselling needs and the exchange of information between parents regarding the children's education and health.

Forrest J ordered that the mother and father shall have shared parental responsibility for the children, with the exception that the mother shall have sole parental responsibility for decisions regarding the children's schooling, provided she follows a specific consultation process with the father. The children are to live with the mother, and their time with the father is detailed, with provisions for increased time upon the father obtaining a driver's licence and use of a motor vehicle, and upon completion of specific parenting courses. The orders also include provisions for holidays, communication, counselling for one child, and exchange of information between parents, along with restraints on denigrating the other parent and on the father harassing or assaulting the mother.

Orders

Orders of the court

That save as otherwise provided for herein, the mother and the father shall have shared parental responsibility for the children, L born … June 2004 and N born … August 2007 (“the children”).

That notwithstanding paragraph 1 hereof, the mother shall have sole parental responsibility for the children where the exercise of that parental responsibility involves making a decision about the particular school that the children or either of them shall attend, subject to the mother:

(a) Writing to the father and informing him of such a decision having to be made, proposing options to him as to how that decision might be made, and asking him for his views or proposals as to how the decision should be made and to send her any such views or proposals in writing, or, if she requests, to tell her of any such views or proposals; and

(b) Considering and taking into account any views or proposals about the decision to be made that have been expressed to her by the father; and

(c) Advising the father in writing of the decision that she actually makes, including as to the reasons why she made that decision.

That the children live with the mother provided she continues to live with them in Brisbane, Queensland.

That the children spend time with the father as may be agreed between the mother and the father, but in default of agreement they shall spend time with him as follows:

(i) Until such time as the father has a driver’s licence and use of a motor car, from Saturday at 9.00 am until Sunday at 5.00 pm each alternate weekend;

(ii) On the giving of one week’s written notice to the mother that he has obtained a Queensland driver’s licence and the use of a motor car for transporting the children during the time they spend with him, from the close of school on Friday until the start of school on the following Monday each alternate weekend during school term and from the close of school on Monday until the start of school the next day in the other week during school term and for a block of four days and nights every two weeks during school holidays;

(iii) The alternate weekends during school term that are provided for in paragraph (4)(ii) of these Orders shall, once they have commenced, always begin with the first weekend in each school term;

(iv) Subject to the father providing written evidence to the mother that he has completed a Triple P Parenting Course and a Post-Separation Parenting Orders Program offered through, or to which he is referred by a Brisbane Family Relationship Centre, the time the children spend with the father during their school holidays shall increase to half of each of the school holidays from and including the September/October school holidays in 2014 and shall be the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years;

(v) For two (2) hours on each of the children’s birthdays and the father’s birthday if the day is a school day or four (4) hours on any of those days if not a school day, if they are not otherwise with him on those days pursuant to the provisions of these Orders;

(vi) For all of Father’s Day (from 6.00 pm the evening before until 6.00 pm on the night of Father’s Day) if they are not otherwise with him that day pursuant to the provisions of these Orders.

That if the children are not otherwise with the mother pursuant to the provisions of these Orders on these days they shall spend time with the mother:

(i) For two (2) hours on each of the children’s birthdays and the mother’s birthday if the day is a school day or four (4) hours on any of those days if not a school day;

(ii) For all of Mother’s Day (from 6.00 pm the evening before until 6.00 pm on the night of Mother’s Day).

That notwithstanding the other provisions of these Orders, the mother shall be entitled to take the children on holidays to Germany during the children’s Summer school holidays and during one other end of term school holiday period each year if she wishes, subject to the giving of three months’ notice in writing to the father prior to each such holiday.

That if the mother decides to take the children to Germany for a holiday during their Summer school holidays she shall do so only during the weeks that they will be with her as otherwise provided for in these Orders, save for the ability, if she decides to go for four weeks, to use one week of the time that they would be spending with the father otherwise provided for in these Orders, such week to be at the end of that time if they are with him during the first half of the Summer school holidays or at the beginning of that time if they are with him during the second half of the Summer school holidays, so that the children still spend at least two weeks and each alternate Christmas with their father during their Summer school holidays, and the children’s time with their father pursuant to these Orders shall be suspended for any such week of his holiday time that the mother decides to use for her trip to Germany with the children.

That if the mother decides to take the children to Germany for a holiday during any of their other end of term school holidays and decides to go not just for the time they would be with her pursuant to these orders but for the entirety of that holiday period, she may use the time that the children would otherwise be spending with the father pursuant to these Orders and the children’s time with their father pursuant to these Orders is suspended for any such part of his holiday time that the mother decides to use for such trip to Germany with the children during such holidays.

That the mother shall within six (6) months of the date of these Orders provide the father with written evidence of attendance at and completion of a Post-Separation Parenting Orders Program offered through, or to which she is referred by a Brisbane Family Relationship Centre.

10.

The father shall neither consume nor be under the influence of alcohol or any other intoxicating substance at any time the children are in his care pursuant to the provisions of these Orders.

11.

That the children shall communicate with the parent in whose care they are not at the time in such manner and at such times as the mother and the father agree.

12.

That unless the mother and the father otherwise agree in writing, the mother shall ensure that the child, L, undertakes counselling with a counsellor approved by the Independent Children’s Lawyer to help him deal with anxiety, particularly any he is experiencing in respect of his relationship with his father, and should the child’s counsellor consider it appropriate to engage the father in such counselling, the father shall involve himself in that counselling as requested by the counsellor and any cost of such counselling, after consideration of any Medicare benefit received in connection with it, shall be shared equally by the parents.

13.

That any transitions of the children between the care of the parents pursuant to these Orders that do not take place simply at the commencement or conclusion of their attendance at school, shall take place just outside the entrance to Coles Supermarket at the corner of B Street and C Street, Suburb D or at such other place as agreed in writing between the mother and the father.

14.

That at the discretion of the administration of the school or schools the children attend from time to time, the mother and the father shall be entitled to attend at the children’s school or schools, including at any school events, as parents of the children at such school are invited to or welcome to attend.

15.

That each parent shall take all steps necessary to authorise the school or schools that the children attend to provide each parent, at that parent’s request, with any information about the school and the children’s educational progress at the school as is usually provided to parents of children attending at that school.

16.

That each parent shall keep the other parent informed as to his and her residential address, landline and/or mobile telephone number, and an email address at which he or she can regularly receive emails and shall advise of any change in any of these details as soon as practicable after such change occurs.

17.

That each parent shall keep the other parent informed as to the general health of the children whilst in his or her care, and as to any developments or changes therein, as well as providing to the other parent the names, addresses and contact details of any medical or allied health practitioners that either or both of the children attend at any time as well as the reason for any such visit, and each parent shall authorise any such medical or allied health practitioner to provide any information to the other parent as may be requested by the other parent about any such visit that such practitioners are lawfully entitled to provide.

18.

That both the mother and the father are restrained from denigrating or abusing the other parent or any person related to or associated with the other parent to or within the hearing of either child.

19.

That the father is restrained from harassing, intimidating, threatening or assaulting the mother.

20.

That the Independent Children’s Lawyer is discharged after completion of the tasks assigned to her pursuant to paragraph 12 of 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.