Hinch and Hinch (No.2)

[2014] FCCA 2832

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINCH & HINCH (No.2) [2014] FCCA 2832

Catchwords:
FAMILY LAW – Relocation application by mother previously dismissed – final orders to reflect terms of earlier reasons for judgment.

Hinch & Hinch [2014] FCCA 2575

Applicant: MR HINCH

Respondent: MS HINCH

File Number: MLC 782 of 2013

Judgment of: Judge Antoni Lucev

Hearing date: On the papers

Date of Last Submission: 2 December 2014

Delivered at: Melbourne

Delivered on: 4 December 2014

REPRESENTATION

Solicitors for the Applicant: Power & Bennett

Solicitors for the Respondent: Saines Lucas Solicitors

ORDERS

1. The application in a case of the mother Ms Hinch (“the Mother”) filed 12 December 2013 be dismissed.

2. That all previous parenting Orders be and are hereby discharged.

3. That the parties have equal shared responsibility for the children [X] born [omitted] 2001 and [Y] born [omitted] 2006 (“the Children”).

4. The Children live with the parties on a week about basis with changeover to occur each Sunday at 6.00pm starting on 7 December 2014, with the Children to live with the Father in the week commencing 6.00pm Sunday 7 December 2014, and with changeovers to occur by the parent with whom the Children are then living delivering the Children to the other parent’s residence in the [S] area.

5. Notwithstanding anything to the contrary herein:

   (a)the Children spend time with the Mother from 6.00pm on Mother’s Day eve to 6.00pm on Mother’s Day;

   (b)the Children spend time with the Father from 6.00pm on Father’s Day eve to 6.00pm on Father’s Day;

   (c)the Children spend time with the Mother from 12.00 noon Christmas Eve until 12.00 noon Christmas Day in odd years and from 12.00 noon Christmas Day until 5.00pm Boxing Day in even years;

   (d)the Children spend time with the Father from 12.00 noon Christmas Eve until 12.00 noon Christmas Day in even years and from 12.00 noon Christmas Day until 5.00pm Boxing Day in even years;

   (e)the Children spend time with the parent in whose care they would not otherwise be in on each of the Children’s birthdays each year between 11.00am and 2.00pm if a non-school day and between 3.30pm and 6.30pm if a school day;

   (f)the Children spend time with their parents on each of their parent’s birthdays, if not already in the care of that parent on the parent’s birthday, between 11.00am and 2.00pm if a non-school day and between 3.30pm and 6.30pm if a school day;

   (g)at all reasonable times by telephone or other forms of electronic communication; and

   (h)the Children, or one of them, may otherwise live and spend time with a parent at any time, for any period, and at any place, agreed to in writing by the other parent.

6. The parties permit and facilitate the Children, should they wish to, to contact the parent with whom they are not living at any time.

7. For changeovers other than those subject to order (4) above, the Father to pick the Children up from the Mother’s residence at the commencement of the times they are with him and the Mother to pick them up at the end of the times from the Father’s residence.

8. Each of the parties is to keep the other informed of up-to-date details of their residential address and phone numbers, and notify any change forthwith.

9. Each of the parties is to notify the other forthwith in the event of accident or illness affecting the Children and authorize medical personnel to communicate with the other party as may be required.

10. Each of the parties be entitled to receive school reports, newsletters, photograph orders forms and other publications from the Children’s school and to do all things to facilitate such receipt.

11. Each of the parties be permitted to attend all events and functions at the Children’s school which parents are ordinarily invited to.

12. In the first instance, the parties utilize the services of a suitable Family Dispute Resolution Service to endeavour to resolve any further issues that might arise in relation to their respective roles as parents.

IT IS NOTED that publication of this judgment under the pseudonym Hinch & Hinch (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 782 of 2013

MR HINCH

Applicant

And

MS HINCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 12 November 2014 the Court delivered judgment in Hinch & Hinch [2014] FCCA 2575 (“Hinch (No.1)”).

2. At para.141 of Hinch (No.1) the Court observed as follows:

   In relation to the primary issues in dispute the Court therefore finds that the Mother ought not be allowed to relocate the Children to [C], and her application in a case filed 12 December 2013 to allow her to do so ought to be dismissed. In relation to equal shared time the Court considers that it is in the best interests of the Children and reasonably practicable for there to be equal shared time between the parents if the Mother continues to reside in [S] or its environs. If the Mother does so then there ought to otherwise be ancillary orders as sought by her, save for the orders for Mother’s Day and Father’s Day. In that respect the Court does not consider that it is necessary for the Children to spend the entire weekend on which those days fall with the Mother or Father respectively. In the Court’s view it is appropriate to order that the Children spend from 6.00pm on the previous evening to 6.00pm on either Mother’s Day or Father’s Day with the Mother and Father respectively. Unless the parties otherwise agree the week about arrangement should commence and cease at 6.00pm on Sundays.

3. The orders sought by the Mother referred to in the above quote were set out at para.4 of Hinch (No.1), relevantly at Part B.

4. The Court went on to make orders as follows:

   (1) The lawyers for the Mother, Ms Hinch, are to advise the lawyers for the Father, Mr Hinch, in writing by 19 November 2014 as to whether the Mother intends to relocate to [C] in New South Wales.

   (2) The parties:

   (a)  if agreement is reached, are to file consent orders by 26 November 2014; and

   (b)  if agreement is not able to be reached, are to file and serve separate minutes of proposed orders by 26 November 2014, with the Court to determine orders on the papers by 1 December 2014.

   (3) Any application for costs to be filed and served within 21 days of the issuance of the further orders referred to in order (2).

5. In Hinch (No.1) at para.143 the Court observed that this was not an opportunity for the parties to re-open or re-negotiate, but to reflect the terms of the Reasons for Judgment in Hinch (No.1).

6. The Mother’s lawyers subsequently advised the Father’s lawyers that the Mother would not relocate without the Children.

7. No consent orders were filed by 26 November 2014. The Father’s lawyers filed minutes of proposed orders on 26 November 2014. The Mother’s lawyers, after corresponding with Chambers, filed minutes of proposed orders on 2 December 2014. Neither of the proposed minutes of proposed orders filed, gave proper effect to the Court’s directions at para.141 of Hinch (No.1). The Mother’s minutes of proposed orders remarkably went so far as to propose that the Father spend five nights a fortnight with the Children, which was her proposed arrangement as set out at para.4 of Hinch (No.1), rather than the “equal shared time” which the Court had found to be in the best interests of the Children and reasonably practicable: see Hinch (No.1) at para.141 (and also paras.138-140).

8. Having regard to:

   a)the Reasons for Judgment in Hinch (No.1);

   b)the Mother’s election not to relocate without the Children; and

   c)the various proposed orders sought by the parties (both before and after delivery of Reasons for Judgment in Hinch (No.1));

   the Court has made orders:

   d)dismissing the relocation application by the Mother;

   e)providing for:

   i)equal shared parental responsibility;

   ii)the Children to live with their parents on a week about basis;

   iii)the Children to spend from 6.00pm on the previous evening to 6.00pm on either Mother’s Day or Father’s Day with the Mother and Father respectively;

   iv)other appropriate spend time arrangements for Christmas and parents’ and Children’s birthdays;

   v)appropriate electronic communication;

   vi)the parties to agree in writing to vary the live with and spend time arrangements; and

   vii)otherwise, ancillary orders generally in terms of the Mother’s proposed orders as set out in paragraph 4 (at Part B of those proposed orders) of Hinch (No.1).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  4 December 2014