HELMER & CASTAIN - [2020] FCCA 20

FEDERAL CIRCUIT COURT OF AUSTRALIA

HELMER & CASTAIN

[2020] FCCA 20

Catchwords:
FAMILY LAW – Parenting – whether mother should be permitted to relocate to Town B in Queensland with the child – where father opposes relocation – where child suffers from Autism Spectrum Disorder – where psychologist contends that the child will strive with structure and consistency in both home and school environments – where it is not in the child’s best interests to relocate with the mother to Town B.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

A & A: Relocation Approach [2000] FamCA 751
Goode v Goode [2006] FamCA 1346
McCall & Clark [2011] FamCAFC 194
U & U [2002] HCA 36

Applicant:

MR HELMER

Respondent:

MS CASTAIN

File Number:

DGC 850 of 2018

Judgment of:

Judge Burchardt

Hearing date:

28 November 2019

Date of Last Submission:

28 November 2019

Delivered at:

Melbourne

Delivered on:

10 January 2020

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr Testart

Solicitors for the Respondent:

Testart Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Lovering

Solicitors for the Independent Children’s Lawyer:

VM Family Lawyers

ORDERS

All previous parenting orders be discharged.
The Mother and Father have equal shared parental responsibility for the child X born 2010 (“the child”).
The child live with the Mother.
The Mother be restrained by injunction from relocating to Town B with the child.
The child spend time and communicate with the Father as follows:
(a)During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if not a school day) until the commencement of school on Monday (or 9:00am if not a school day);
(b)For one half of all school term holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(c)For half of the long summer school holidays in a cycle of 10 consecutive days with each parent as agreed between the parties, and in default of agreement for the first 10 days of such school holiday period in even numbered years (and each alternate 10 days thereafter) and the second 10 days in odd numbered years (and each alternate 10 days thereafter);
(d)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(e)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(f)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(g)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(h)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;
(i)On the child’s birthday as agreed between the parties, and in default of agreement, from the conclusion of school until 7:30pm, or 10:00am to 2:00pm if not a school day.
(j)As may otherwise be agreed…

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 HELMER & CASTAIN

Details

AGLC: HELMER & CASTAIN [2020] FCCA 20
Case: [2020] FCCA 20
Decision Date: 10 January 2020

CaseChat Overview and Summary

In the matter of Helmer & Castain, Judge Burchardt considered an application by the mother for permission to relocate with the child, X, to Town B in Queensland. The father opposed this relocation. The child, born in 2010, suffers from Autism Spectrum Disorder, and a psychologist's report indicated that the child would thrive with structure and consistency in both home and school environments.

The central legal issue before the court was whether the proposed relocation of the child to Town B with the mother was in the child's best interests, given the father's opposition and the child's specific needs. The court was required to weigh the mother's desire to relocate against the potential impact on the child's stability and relationship with the father.

The court reasoned that it was not in the child's best interests to relocate with the mother to Town B. Applying the principles of the *Family Law Act 1975*, the court prioritised the child's welfare and stability. The court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the mother, but the mother was restrained by injunction from relocating to Town B with the child. The orders detailed specific arrangements for the child's time and communication with the father, including during school terms, holidays, and special occasions, as well as provisions for communication, information sharing, and mutual respect between the parents.

Orders

Orders of the court

All previous parenting orders be discharged.

The Mother and Father have equal shared parental responsibility for the child X born 2010 (“the child”).

The child live with the Mother.

The Mother be restrained by injunction from relocating to Town B with the child.

The child spend time and communicate with the Father as follows:

(a) During school terms, each alternate weekend from the conclusion of school on Friday (or 3:00pm if not a school day) until the commencement of school on Monday (or 9:00am if not a school day);

(b) For one half of all school term holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;

(c) For half of the long summer school holidays in a cycle of 10 consecutive days with each parent as agreed between the parties, and in default of agreement for the first 10 days of such school holiday period in even numbered years (and each alternate 10 days thereafter) and the second 10 days in odd numbered years (and each alternate 10 days thereafter);

(d) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;

(e) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;

(f) From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;

(g) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;

(h) On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;

(i) On the child’s birthday as agreed between the parties, and in default of agreement, from the conclusion of school until 7:30pm, or 10:00am to 2:00pm if not a school day.

(j) As may otherwise be agreed between the parties.

Any period the child is to spend with the Father be suspended as follows:

(a) For one half of all school term holidays as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;

(b) For half of the long summer school holidays in a cycle of 10 consecutive days with each parent as agreed between the parties, and in default of agreement for the second set of 10 consecutive days of such school holiday period in even numbered years and the first set of 10 consecutive days in odd numbered years;

(d) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years;

(e) From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;

(f) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;

(g) On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and

(h) As may otherwise be agreed between the parties.

Changeovers occur at the child’s school where possible, and otherwise such other location as may be agreed between the parties in writing from time to time.

The father place the child in the care of a responsible third party (including the mother) in the event that he proposes to go to work with the child for a period of anything in excess of an hour and a half.

Each of the Mother and Father be at liberty to communicate with the child at reasonable times and by reasonable means (including by FaceTime, etc.) when the child is in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Tuesday and Thursday night.

10.

The parties each be, and is hereby, authorised to obtain, directly from any school attended by the child, details of the child’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.

11.

Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.

12.

Neither party enrol the child, in any extra-curricular or sporting activity which is to occur during the time the child spends with the other parent, save with the consent of such parent.

13.

Each of the parties keep the other informed of any illness or injury occurring to the child, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

14.

Each of the parties provide the other with their contact address and telephone number during periods when the child is in their care and inform the other forthwith of any change in such address or telephone number.

15.

The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

(b) Discussing these proceedings,

to or in the presence or hearing of the child and from permitting any other person to do so.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B. Liberty is reserved to the parties in the event of disagreement about changeover other than at school.

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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