Holden and Mount - [2017] FCCA 2307

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLDEN & MOUNT

[2017] FCCA 2307

Catchwords:
FAMILY LAW – Final parenting arrangements for children aged 12 and 11 – high conflict between parents – older child has significant special needs – parties have agreed final arrangements for care of children after extended process of litigation and family therapy – one issue remains outstanding – what school should older child attend – father favours current school which is a private one – mother advocates specialised government school – principal of child’s current school advocates a government school – matters to be considered.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 68LA

Cases cited:

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MR HOLDEN

Respondent:

MS MOUNT

File Number:

ADC 3708 of 2015

Judgment of:

Judge Brown

Hearing date:

12 September 2017

Date of Last Submission:

12 September 2017

Delivered at:

Adelaide

Delivered on:

22 September 2017

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Georgina Parker Lawyers

Counsel for the Independent Children's Lawyer:

Ms DuBarry

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of SA

ORDERS

UPON NOTING:

A.The mother will use her best endeavours to ensure the children spend time with the father pursuant to these orders and will encourage the children to do so.
B.The parties will attend mediation no earlier than June 2018 with a view to discussing ongoing parenting orders including whether there should be a shared care arrangement in place.

THE COURT ORDERS BY CONSENT THAT:

The children X born (omitted) 2004 and Y born (omitted) 2005 live with the mother.
The parties have joint parental responsibility for the said children.
The said children spend time with the father as follows:
(a)as to the child Y, for a period of no less than four hours once a month, at times and on a date to be agreed between the said child and the father, with the intention the father will take the child to an activity such as a movie and a meal or other suitable activity, for a period of three months,
(b)as to the child X, each alternate weekend from conclusion of school until 5pm Sunday commencing 22 September 2017, with the child Y to commence spending time with the father on the same weekend times from December 2017
(c)from 10am until 5pm on Father’s Day, provided that if the children are in the care of the father on Mother’s Day they be returned to her care at 10am on Mother’s Day
(d)on Christmas day from 2:00pm until 2:00pm Boxing Day and each odd numbered years thereafter NOTING the father will be travelling to New South Wales for the even numbered years and would like the children to accompany him for a week.
(e)for special occasions such as the children’s birthdays, Anzac Day, school term and Christmas holidays, at times…

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 Holden and Mount

Details

AGLC: Holden and Mount [2017] FCCA 2307
Case: [2017] FCCA 2307
Decision Date: 22 September 2017

CaseChat Overview and Summary

This matter concerned parenting orders made by consent between the mother and father of two children, X and Y. The court was Judge Brown.

The legal issues before the court involved determining the living arrangements for the children, their parental responsibility, and the specific times they would spend with each parent. The orders also addressed communication protocols between the parents and children, restrictions on parental conduct, and financial obligations related to the children's schooling.

The court's decision was based on the consent of the parties. The orders stipulated that the children would live with the mother and that both parents would share joint parental responsibility. Specific arrangements were detailed for the children to spend time with the father, with significant emphasis placed on the children's wishes and their agreement to such time. The orders also included provisions for communication, parental conduct, and financial contributions towards the children's education.

By consent, the court ordered that the children live with the mother and have joint parental responsibility. Specific times for the children to spend with the father were outlined, subject to the children's wishes. The court also made orders regarding communication, parental conduct, and the father's financial obligations for schooling. The appointment of an independent children's lawyer was discharged, and all applications were dismissed.

Orders

Orders of the court

UPON NOTING:

A. The mother will use her best endeavours to ensure the children spend time with the father pursuant to these orders and will encourage the children to do so.

B. The parties will attend mediation no earlier than June 2018 with a view to discussing ongoing parenting orders including whether there should be a shared care arrangement in place.

THE COURT ORDERS BY CONSENT THAT:

The children X born (omitted) 2004 and Y born (omitted) 2005 live with the mother.

The parties have joint parental responsibility for the said children.

The said children spend time with the father as follows:

(a) as to the child Y, for a period of no less than four hours once a month, at times and on a date to be agreed between the said child and the father, with the intention the father will take the child to an activity such as a movie and a meal or other suitable activity, for a period of three months,

(b) as to the child X, each alternate weekend from conclusion of school until 5pm Sunday commencing 22 September 2017, with the child Y to commence spending time with the father on the same weekend times from December 2017

(c) from 10am until 5pm on Father’s Day, provided that if the children are in the care of the father on Mother’s Day they be returned to her care at 10am on Mother’s Day

(d) on Christmas day from 2:00pm until 2:00pm Boxing Day and each odd numbered years thereafter NOTING the father will be travelling to New South Wales for the even numbered years and would like the children to accompany him for a week.

(e) for special occasions such as the children’s birthdays, Anzac Day, school term and Christmas holidays, at times and on dates to be agreed between the father and the children,

(f) for such other times as the parties and the children may agree in writing

The times referred to in paragraph 3 above are subject to the children’s wishes, with the father to communicate with the children on the Wednesday prior to his weekend time, to ascertain whether the children intend on spending time with him.

If the children or either of them are to spend time with the father as referred to in paragraph 3 (a) or (b) above, the father is to:

(a) notify the school by email that he will be collecting the children or either of them from school on that date.

(b) notify the mother by email or text message of the arrangements made between the father and the children.

Upon notification by the father that the children have agreed to spend time with him, the mother is restrained from:

(a) attending at the children’s school to collect the children or either of them, except in the case of an emergency,

(b) arranging any alternate activity or event on the weekend the children will be spending time with the father except with his prior consent.

The father is at liberty to attend all school functions and events to which parents would normally be invited, as to receive copies of all school notices and photographs of the said children at his expense.

The mother is keep the father fully informed of any significant medical appointment, counselling, therapy or special educational programmes the children may be involved in, including the name of, and appointments with, any such therapist or counsellor, and is to authorise them to communicate directly with father at their discretion.

Each party is restrained from:

(a) denigrating, abusing, harassing, or threatening the other of them in the presence of the children or encouraging any other person to do so;

(b) attending at the other party’s residence without a specific written invitation to do so;

(c) except in the case of an emergency, taking the children or either of them to any specialist medical practitioner without first informing the other parent of the nature of the consultation, and the date and time of the consultation;

(d) writing by email or otherwise to either of the children’s schools details of any parenting dispute between the parties, except as provided for in paragraph 5 above.

10.

The father has agreed to pay all of the outstanding fees owed to (omitted) School and will pay the fees for the time the child X remains at (omitted) School for 2017.

11.

In the event the children do not spend time with the father pursuant to these orders, the father is at liberty to arrange make up time with either of the children, subject to their wishes.

12.

The children be at liberty to communicate with the father by telephone at any reasonable time they may wish to do so.

13.

The father be at liberty to call the children on their mobile phones each day between 6:00pm and 7:00pm NOTING that the mother will use her best endeavours to ensure the children’s phones are charged daily.

IT IS OTHERWISE ORDERED THAT:

14.

The mother is at liberty to enrol the child X at the (omitted) School from the commencement of the school year in 2018, with the father to be named on the necessary enrolment form as a contact person in the case of any emergency concerning the child.

15.

The appointment of the independent children’s lawyer be discharged.

16.

All applications be dismissed

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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