HART & JERVIS - [2020] FamCA 447

FAMILY COURT OF AUSTRALIA

HART & JERVIS

[2020] FamCA 447

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Relocation – Best interests of a child – Where the mother has unilaterally relocated the children to New South Wales – Where the father seeks the children be returned to the State of South Australia and the parties have equal shared care – Where prior to relocation the parties shared the care of the children on a week about basis in the former matrimonial home – Where the mother alleges a decline in the father’s mental health which the father denies – Where the mother alleges family violence and the father opposes the allegations – Whether the father could have a meaningful relationship with the children where the children are located interstate and COVID-19 restrictions are in place – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 65DAA

Browne & Keith [2015] FamCAFC 143
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Starr & Duggan [2009] FamCAFC 115

APPLICANT:

Mr Hart

RESPONDENT:

Ms Jervis

FILE NUMBER:

ADC

1576

2020

DATE DELIVERED:

4 June 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

25 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bowler

SOLICITOR FOR THE APPLICANT:

Diane Myers Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Ross

SOLICITOR FOR THE RESPONDENT:

CJL Family Law

Orders

That the mother do return the children to the State of South Australia within fourteen (14) days of the date of this order.
That until further order the mother shall have the sole use and occupation of the property situated at B Street C Town in the State of South Australia.
That the parties have equal shared parental responsibility for X born … 2010 and Y born … 2012 (collectively “the children”).
That until further order the children live with the mother.
That until further order the children spend time with the father as follows:-
(a)During school term periods, from after school on Friday to the commencement of school on the following Tuesday in each alternate week, commencing on the first weekend after the children have completed a fourteen (14) day period of isolation.
(b)For one week during each school term holiday period at times as agreed between the parties or failing agreement from the conclusion of each school term period.
That changeover shall take place at the children’s school where appropriate and otherwise the children will be delivered by the parent they are with to the maternal grandfather’s residence.
That each of the parties will facilitate regular telephone communication between the children and the other parent at times they are in their care, including upon the children’s request.
That each party forthwith advise the other party of any change of telephone number or change of residential location prior to such occurring, if practicable, and in any event not more…

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 HART & JERVIS

Details

AGLC: HART & JERVIS [2020] FamCA 447
Case: [2020] FamCA 447
Decision Date: 4 June 2020

CaseChat Overview and Summary

This matter concerned parenting orders made by Berman J in the Federal Circuit and Family Court of Australia. The dispute involved the mother and father of two children, X and Y, and concerned their living arrangements, time spent with each parent, and other related matters.

The court was required to determine the terms of parenting orders, including the children's residence, the allocation of parental responsibility, the schedule for the children to spend time with each parent, and provisions for communication and notification between the parents. Further issues included orders regarding the family home, injunctions restraining parties from attending certain locations, and arrangements for the children's schooling and medical care. The court also ordered a family assessment report to assist in determining the children's best interests.

Berman J made orders for equal shared parental responsibility and that the children live with the mother. The father was granted specific time with the children during school terms and holidays, with detailed provisions for changeovers and communication. The court also made orders concerning the family property, enjoining the parties from attending each other's residences or places of employment, and mandating notification of any changes to residential location or contact details. The children were to be re-enrolled at a specific school, and both parents were authorised to communicate with the school and attend school functions. Finally, the court ordered the parties to attend upon a psychologist for a family assessment report, with liberty to relist the matter after its publication.

Orders

Orders of the court

That the mother do return the children to the State of South Australia within fourteen (14) days of the date of this order.

That until further order the mother shall have the sole use and occupation of the property situated at B Street C Town in the State of South Australia.

That the parties have equal shared parental responsibility for X born … 2010 and Y born … 2012 (collectively “the children”).

That until further order the children live with the mother.

That until further order the children spend time with the father as follows:-

(a) During school term periods, from after school on Friday to the commencement of school on the following Tuesday in each alternate week, commencing on the first weekend after the children have completed a fourteen (14) day period of isolation.

(b) For one week during each school term holiday period at times as agreed between the parties or failing agreement from the conclusion of each school term period.

That changeover shall take place at the children’s school where appropriate and otherwise the children will be delivered by the parent they are with to the maternal grandfather’s residence.

That each of the parties will facilitate regular telephone communication between the children and the other parent at times they are in their care, including upon the children’s request.

That each party forthwith advise the other party of any change of telephone number or change of residential location prior to such occurring, if practicable, and in any event not more than six (6) days after the change.

That each party notify the other in writing of any intention to move from their present address or any change to their telephone or email contact details.

10.

That each of the parties be restrained and an injunction is granted restraining each of them from entering upon or remaining in the vicinity of any premises in which either party may be residing or any place of employment of each of them.

11.

That each of the father and mother advise each other as soon as is practicable of any significant illness to or injury suffered by the children whilst they are in a parent’s care along with the names and contact details of any treating medical and/or allied health professionals so that each of the parties may liaise with same.

12.

That the parties do all things necessary to cause the children to be re-enrolled at the D School unless otherwise agreed in writing.

13.

That each of the parties be authorised:-

(a) To attend any school attended by the children or any of them and to communicate with teachers and school staff in relation to the children;

(b) To receive copies of school reports, school photographs and notices usually provided to parents, at their expense respectively;

(c) To attend all school functions and activities including extra-curricular activities to which parents are invited to attend; and

(d) To provide a copy of these orders to any school attended by the children or any of them.

14.

That the parties attend upon such psychologist as may be agreed between them for the purpose of the preparation of a family assessment report as to the said psychologist’s opinion as to the living arrangements which would best promote the children’s best interests, with the cost of the report to be shared equally between the parties.

15.

That each of the parties be at liberty to relist the matter either as to parenting or financial applications not less than twenty one (21) days after the publication of the intended family assessment report.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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