Hill and Denton (No 2) - [2015] FamCA 746

FAMILY COURT OF AUSTRALIA

HILL & DENTON (NO 2) [2015] FamCA 746

FAMILY LAW – CHILDREN – equal shared parental responsibility – where father to contribute to child’s overseas travel – where mother sought international relocation – where Family Court to hold child’s passport – where mother permitted to travel with child without the requirement of make-up time – considered whether the child could maintain a meaningful relationship with the father if permitted to relocate overseas with the mother

Family Law Act 1975 (Cth) s 4 s 4AB s 60 B s 60CC s 61DA s 65DAA s 65DAC s 106A

Evidence Act 1999 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
LC & TC (1998) FLC 92-803

APPLICANT: Mr Hill

RESPONDENT: Ms Denton

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 719 of 2012

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 3, 4, 5 & 6 August 2015
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITORS FOR THE APPLICANT: Murray Lyons & Co

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:
Ms Wilson

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone
Orders
Previous orders
1.All previous parenting orders are forthwith discharged.

Parental Responsibility
2.The mother and father have equal shared parental responsibility for the child C born … 2012 (“the child”).

Time the Child will live with the Mother and the Father
3.From the commencement of these Orders until December 2015 in each week the child will live with the father from:
(a)9:00am on Sunday morning until 3:00pm Tuesday afternoon; and
(b)3:00pm on Wednesday until 3:00pm on Thursday.

4.From the commencement of the 2016 Queensland school year in each fortnight the child will live with the father from:
(a)3:00pm Thursday to 3:00pm Friday in week one and;
(b)3:00pm Thursday to 3:00pm Monday in week two

5.The child will live with the mother at all times the child is not living with father pursuant to these Orders.
6.During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;

(c)Not discuss the Court proceedings, Court orders or any aspects of the Court proceedings with the child or in the presence, or hearing of the child; and

(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Holidays
7.From the 2015 Queensland gazetted Christmas / New Year school holiday period the child will spend time with the father…

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 Hill and Denton (No 2)

Details

AGLC: Hill and Denton (No 2) [2015] FamCA 746
Case: [2015] FamCA 746
Decision Date: 9 September 2015

CaseChat Overview and Summary

This case concerned parenting orders made by Tree J in the Family Court of Australia. The orders detailed the arrangements for the child, C, born in 2012, between the mother, Ms Denton, and the father, Mr Hill. The dispute revolved around the specific terms of parental responsibility, the child's living arrangements, holiday schedules, communication protocols, and travel arrangements, including overseas travel.

The court was required to determine the specific orders regarding equal shared parental responsibility, the division of time the child would spend with each parent, and the arrangements for holidays and special days. Further issues included protocols for communication between parents, arrangements for the child's schooling and medical appointments, and procedures for travel, both domestically and internationally. The court also addressed the removal of the mother from an Airport Watch List and the discharge of the Independent Children's Lawyer.

Tree J made extensive orders to establish a framework for the parents' shared responsibility and the child's time with each parent. These orders included detailed schedules for weekdays, weekends, school holidays, and special occasions, aiming to ensure the child had regular and meaningful time with both parents. The court also mandated respectful communication between the parents and established clear guidelines for travel, schooling, and dispute resolution, reflecting a comprehensive approach to the child's welfare. The orders also provided for the discharge of the Independent Children's Lawyer and the dismissal of extant applications.

Orders

Orders of the court

Previous orders

1. All previous parenting orders are forthwith discharged.

Parental Responsibility

2. The mother and father have equal shared parental responsibility for the child C born … 2012 (“the child”).

Time the Child will live with the Mother and the Father

3. From the commencement of these Orders until December 2015 in each week the child will live with the father from:

(a) 9:00am on Sunday morning until 3:00pm Tuesday afternoon; and

(b) 3:00pm on Wednesday until 3:00pm on Thursday.

4. From the commencement of the 2016 Queensland school year in each fortnight the child will live with the father from:

(a) 3:00pm Thursday to 3:00pm Friday in week one and;

(b) 3:00pm Thursday to 3:00pm Monday in week two

5. The child will live with the mother at all times the child is not living with father pursuant to these Orders.

6. During the time the child is with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent respectfully;

(c) Not discuss the Court proceedings, Court orders or any aspects of the Court proceedings with the child or in the presence, or hearing of the child; and

(d) Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Holidays

7. From the 2015 Queensland gazetted Christmas / New Year school holiday period the child will spend time with the father for three consecutive nights each week from Sunday morning until Wednesday morning.

8. From Easter 2016 and each Queensland gazetted school holiday period thereafter the child will spend half the holiday period with each parent as agreed between the parties, and in default of agreement, on a week about basis, with the child to spend the first week of each holiday period with the father in even numbered years, and the mother in odd numbered years.

Child’s travel to Country E

9. Notwithstanding any order herein pursuant to which the child is to spend time with the father, the child is permitted to travel to Country E with the mother on one occasion in each 12 month period for a period of up to six weeks (without the requirement to make up time to the father) such time may include:

(a) The child’s birthday (in alternate years);

(b) Christmas Day (in alternate years) and;

10. The mother is to facilitate communication between the child and the father by Skype on three days per week during any period of time she and the child are in Country E and failing agreement then each Monday, Wednesday and Saturday at a time nominated by the mother.

11. The father will be responsible for the cost of one return economy class airfare for the child to travel to Country E each alternate year, such payment to be made into a bank account nominated by the mother within 21 days of the mother notifying the father of the cost of the airfare.

12. Save and except for the provision in Order 11 above the mother will remain solely responsible for all costs associated with travel for her and the child to and from Country E including any and all airfares and accommodation.

Special days

13. Subject to order 9, but otherwise notwithstanding any contrary arrangement under these Orders, the child will spend the following time with the parent with whom they are not residing:

(a) With the father on Father's Day from 9:00am until 5:00pm in each year:

(b) With the mother on Mother's day from 9:00am until 5:00pm in each year;

(c) With the father from 5:00pm Christmas Eve to 11:00am Christmas Day in odd numbered years and from 11:00am Christmas Day to 5:00pm Boxing Day in even numbered years;

(d) With the mother from 5:00pm Christmas Eve to 11:00am Christmas Day in even numbered years and from 11:00am Christmas Day to 5:00pm Boxing Day in odd numbered years;

(e) If the mother has the child and has travelled to Country E on an arranged extended Christmas holiday pursuant to Order 9 then the child shall be provided an opportunity to telephone/skype the father and extended parental family on Christmas day;

(f) On the father's birthday from after school to the start of the next school day if the day falls on a school day and from 9:00am to 5:00pm if the day falls on a non-school day that the child is not otherwise in the care of the father;

(g) On the mother's birthday from after school to the start of the next school day if the day falls on a school day and from 9:00am until 5:00pm if the day falls on a non-school day that the child is not otherwise in the care of the mother;

(h) On the child's birthday with the father from after school until to the start of the next school day or if a non-school day then from 9:00am until 1:00pm if the birthday falls on a day that the child is not in the care of the father;

(i) On the child's birthday with the mother from after school until to the start of the next school day or if a non-school day then from 9:00am until 1:00pm if the birthday falls on a day that the child is not in the care of the mother.

14. For the purpose of these orders in the absence of any written agreement between the parents, the following orders apply:

(a) The first week of all school holidays is deemed to commence at 3.00pm on the last day of school;

(b) The second week of all school holidays is deemed to commence at 3:00pm on the day 7 days after the commencement of the first week;

(c) If either parent is unable to attend the changeover, then they may appoint a member of their family or friend to facilitate the changeover.

Telephone communication

15. That during school term the father be permitted to telephone/skype the child on Tuesdays between 5.45pm and 6.15pm and the mother facilitate this telephone time.

16. During trips and holiday periods, the parent who is travelling with the child shall be responsible for assisting the child to call the other parent on Mondays and Wednesdays between 5.45pm and 6.15pm, or as otherwise agreed.

17. The parent with whom the child is with, will ensure that the child can speak to the other parent in private and without interruption for up to ten minutes.

18. Should the child express a wish to speak to the other parent, the attending parent shall facilitate a telephone/skype call within a reasonable time.

Extra-curricular activities

19. Neither parent should enrol the child in any extracurricular activity which requires the child’s attendance during the other parent’s time with the child, without the prior written consent of the other parent.

Communication

20. The parents shall primarily communicate about matters concerning the child’s welfare and care arrangements by email for non-urgent matters and text messages for urgent matters.

Schooling

21. That both the mother and the father shall be authorised and entitled to attend at the child’s school or school classroom or similar institution within the guidelines for parental attendance at such institution.

22. That both the mother and the father shall be entitled to attend at parent/teacher meetings, school concerts, shows, sports days, all ceremonies and other school events and functions.

23. That both the mother and the father shall authorise the child’s school to provide to both parents copies of school reports, newsletters and similar documents, and that this Order shall constitute the parents' authority for same.

Specialist appointments and recommendations

24. The parents are to notify each other and keep each other informed (at least 7 days prior if possible) regarding any specialist appointment for the child, as referred by the child’s general practitioner. Each parent is at liberty to attend such appointment and obtain such information from the specialist, subject always to the discretion of the specialist.

Parent unavailable to care for child

25. In the event that either parent is not able to care for the child pursuant to these orders for a period of longer than 48 hours, they shall use their best endeavours to provide the other parent seven days notice (or as soon as that parent has notice of their intended absence) of their unavailability to spend time with the child and offer them the first opportunity to care for the child, subject to the terms of Order 26 herein.

26. If neither parent is available to care for the child, then she is permitted to spend time with either the paternal or maternal grandparents for up to 48 hours. After this time, if the parent requiring assistance is still absent, that parent is to do all acts and things to ensure that the other parent is given the option to have the child returned to their care pursuant to the terms of Order 24 herein, whilst the absent parent remains unable to care for the child. The parent who is organising for the child to spend the proposed 48 hours with the child’s grandparent/s is to advise the other parent as soon as possible of these arrangements.

Travel

27. If the child is removed from the F Town area for a period of more than four (4) nights, the travelling parent is to provide to the other parent a full itinerary of both travel and accommodation plans and all contact details at least seven days prior to the date of travel.

Overseas Travel

28. That the mother and father be permitted to travel with the child overseas to Hague Convention countries on the following terms and conditions:-

(a) The parent proposing to travel shall provide the other parent with as much notice as possible and at least one month’s notice in writing of any intended overseas travel and a proposed itinerary;

(b) The travelling parent shall provide the other parent with copies of both the child’s and the travelling parent’s return air tickets prior to leaving Australia;

(c) The travelling parent shall provide the other parent with the address at where the child will be staying and a contact telephone number;

(d) The travelling parent shall provide the other parent with contact details of the closest hospital/medical clinic and police station to where the child will be staying;

(e) Both parents shall provide written authorisation to the Registry Manager of the Family Court at F Town authorising the release of the child’s passport for such travel;

(f) Upon the child’s return, the child’s passport shall be deposited with the Registry Manager of the Family Court in F Town for safe keeping.

Passport

29. Each parent will execute a passport application when requested to do so and each will do all acts and things necessary to direct and authorise the Australian Passport Office/Department of Foreign Affairs and Trade to issue a passport to the child within 30 days of receipt of the application.

30. In the event that either party fails to do all acts and things necessary to enable a passport to issue for the child, the Australian Passport Office and/or Department of Foreign Affairs and Trade is authorised to issue a passport for the child, notwithstanding that the other party has not given his/her consent to the issue of a passport or failed to sign the relevant documents.

31. That each of the parties shall do all acts and sign all necessary documents to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

Dispute resolution

32. In the event there are any future disputes about parenting issues, the parents are to jointly attend upon a Dispute Resolution Counsellor at the Family Relationships Centre or other dispute resolution service or mediator, and each are to genuinely engage in an attempt to resolve the issue.

Other issues

33. The mother, Ms Denton born … 1988 be removed from the Airport Watch List held by the Australian Federal Police.

34. That each party shall notify the other of their current postal address, email address and contact mobile phone number and keep them so advised within 24 hours of any change to same.

35. That where changeovers cannot take place at the child’s school then they shall take place at the mother’s election either at the service station at Machans Beach or the mother’s residence or such other place that the parties may agree to.

36. The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

37. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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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