Hartman and Davies - [2015] FCCA 14

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARTMAN & DAVIES

[2015] FCCA 14

Catchwords:
FAMILY LAW – Children – relocation – maintaining relationship with both parents – balance favoured child relocating to Adelaide with the mother.

Legislation:

Family Law Act 1975

Hepburn & Noble [2010] FamCAFC 111.
A & A: Relocation approach (2000) FLC 93-035.
Cales & Cales [2010] FamCAFC 237.
MRR & GR [2010] HCA 4.
Taylor & Barker [2007] FamCA 1246.
Morgan & Miles (2007) FLC 93-343.
AIMS v AIF (1999) CLR 160.

Applicant:

MS HARTMAN

Respondent:

MR DAVIES

File Number:

SYC 5395 of 2013

Judgment of:

Judge Henderson

Hearing dates:

29, 30 and 31 October 2014

Date of Last Submission:

31 October 2014

Delivered at:

Sydney

Delivered on:

9 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Gonzalez & Co

Counsel for the Respondent:

Ms Kennedy

Solicitors for the Respondent:

Abrams Turner Whelan Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Ladopolous

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Blacktown Family Law

ORDERS

The mother and father have equal shared parental responsibility for the child [X] (“[X]”) born [omitted] 2001.
The mother be permitted to relocate to Adelaide, South Australia with [X] forthwith.
[X] shall live with his mother in Adelaide.
[X] shall spend time with his father at minimum as follows:
(a)During each school term for two weekends from after school Friday to before school Monday as agreed between the parties abut failing agreement for the 3^rd and 6^th weekend of the term; and
(b)For a 10 day block in the April, July and September school holiday periods as agreed between the parties but failing agreement to commence for the first Saturday of the holiday period; and
(c)For the Christmas school holiday for a 4 week period as agreed between the parties but failing agreement commencing 27 December in odd numbered years and 24 December in even numbered years.
(d)On any occasion the father is in Adelaide by giving the mother 14 days notice of his intention to spend time with the child, the location and duration of the time.
Within 14 days of these orders and within 14 days of [X]’s subsequent enrolment at any school the mother and father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school [X] may attend from time to time, that the father and mother upon their own actions and enquires be entitled to a copy of [X]’s school reports, merit cards, any written material pertaining to [X]’s academic and extra-curricular activities.
Both parties shall ensure that each parent is kept informed of the following:
(a)Any medical problems or illnesses suffered by [X] whilst in either parties care.
(b)Any medication that has been prescribed for [X].
(c)Any social, school or religious functions which [X] is to attend.
(d)The particulars of others who may reside with [X] from time to time.
For the purpose of communicating information between the parties…

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 Hartman and Davies

Details

AGLC: Hartman and Davies [2015] FCCA 14
Case: [2015] FCCA 14
Decision Date: 9 January 2015

CaseChat Overview and Summary

In the matter of Hartman and Davies, heard by Judge Henderson, the dispute concerned parenting arrangements for the child [X]. The orders made by the court addressed issues of parental responsibility, relocation, living arrangements, and time spent between the child and each parent.

The court was required to determine the extent of equal shared parental responsibility, whether the mother should be permitted to relocate with the child to Adelaide, South Australia, and the specific arrangements for the child's living situation and time with each parent. Further issues included the provision of educational and medical information between parents, communication protocols, travel notification, and the prohibition of derogatory comments about a parent in the child's presence. The court also considered the financial responsibilities for travel and schooling, and a potential variation to the living arrangements if the father were to reside in Adelaide.

Judge Henderson ordered that the mother and father have equal shared parental responsibility for [X]. The mother was permitted to relocate to Adelaide with [X], who would live with her. The orders then detailed a comprehensive schedule for [X] to spend time with his father, including specific weekend and school holiday arrangements, with provisions for agreement between the parties or default commencement dates. The court also mandated that both parents ensure they receive copies of [X]'s school reports and be kept informed of his medical and social activities. Communication between the parents was to be by telephone for urgent matters and email or text for day-to-day arrangements. Provisions were made for travel notification, and both parents were ordered to refrain from making derogatory comments about the other in [X]'s presence. The orders also addressed the sharing of costs for travel and school fees, and a conditional variation to the living arrangements if the father established a residence in Adelaide.

Orders

Orders of the court

The mother and father have equal shared parental responsibility for the child [X] (“[X]”) born [omitted] 2001.

The mother be permitted to relocate to Adelaide, South Australia with [X] forthwith.

[X] shall live with his mother in Adelaide.

[X] shall spend time with his father at minimum as follows:

(a) During each school term for two weekends from after school Friday to before school Monday as agreed between the parties abut failing agreement for the 3rd and 6th weekend of the term; and

(b) For a 10 day block in the April, July and September school holiday periods as agreed between the parties but failing agreement to commence for the first Saturday of the holiday period; and

(c) For the Christmas school holiday for a 4 week period as agreed between the parties but failing agreement commencing 27 December in odd numbered years and 24 December in even numbered years.

(d) On any occasion the father is in Adelaide by giving the mother 14 days notice of his intention to spend time with the child, the location and duration of the time.

Within 14 days of these orders and within 14 days of [X]’s subsequent enrolment at any school the mother and father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school [X] may attend from time to time, that the father and mother upon their own actions and enquires be entitled to a copy of [X]’s school reports, merit cards, any written material pertaining to [X]’s academic and extra-curricular activities.

Both parties shall ensure that each parent is kept informed of the following:

(a) Any medical problems or illnesses suffered by [X] whilst in either parties care.

(b) Any medication that has been prescribed for [X].

(d) The particulars of others who may reside with [X] from time to time.

For the purpose of communicating information between the parties the mother and father shall:

(a) Communicate by telephone matters of an urgent nature.

(b) Communicate via email or text message about day to day matters including arrangements for each party to spend time with [X].

In the event either party travels interstate or overseas during their time with [X] provided for in these Orders, the traveling party shall give not less than 7 days in advance written notice of the address and contact telephone number of the location for the travel.

Each party refrain from making critical or derogatory comments in relation to the other parent in the presence or hearing of [X] and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of [X].

10.

Each party advise the other party and keep the other party informed of their current residential address and contact telephone numbers (including both landline and mobile numbers if applicable) and advise the other party of any changes to these details within 7 days.

11.

The parents are equally responsible to meet the costs of any travel arrangements for [X] for the purpose of [X] spending time with either his mother and/or father.

12.

Each party is equally responsible to meet [X]’s school fees should [X] attend [R] School, South Australia.

13.

In the event that the father is able to live in Adelaide for a period of 7 days each second week then upon him advising the mother of:

(a) His accommodation address and details; and

(b) When the father is able to commence such a regime orders 3 and 4 are suspended and [X] shall live with each parent from the commencement of school Monday to the commencement of school the following Monday being with the mother the first week and with the father the second week.

14.

This order to commence 14 days after the father has notified the mother of his arrangements in accordance with order 13 herein.

15.

Thereafter [X] to spend half of all school holidays with each parent being the first half with the mother and second half with the father in odd numbered years and the first half with the father and the second half with the mother in even numbered years.

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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