HOWARD & SWANN - [2015] FCCA 1950

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWARD & SWANN

[2015] FCCA 1950

Catchwords:
FAMILY LAW – Parenting – relocation – long standing status quo – different parenting styles – parents have not talked to each other for over five years – mutual dislike and distrust – good enough parenting.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
R & R: Children’s Wishes (2000) FLC 93-000
MRR v GR (2010) 263 ALR 368

Applicant:

MR HOWARD

Respondent:

MS SWANN

File Number:

DGC 2016 of 2009

Judgment of:

Judge Curtain

Hearing dates:

9 February 2015;

10 February 2015;
11 February 2015;
12 February 2015;
13 February 2015;
2 March 2015; and
3 March 2015

Date of Last Submission:

23 March 2015

Delivered at:

Melbourne

Delivered on:

31 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hannan

Solicitors for the Applicant:

Grice Legal

Counsel for the Respondent:

Mr Burns

Solicitors for the Respondent:

Boers Associates

ORDERS

BY CONSENT

All previous Orders made in relation to the children, X born on (omitted) 2003 (“X”) and Y born on (omitted) 2005 (“Y”), collectively, (“the children”) be discharged.
The father and the mother retain equal shared parental responsibility.

IT IS ORDERED THAT:

The children live with the mother.
The children shall spend time with the father at all times agreed upon between the parties in writing. Failing agreement, the children shall spend time with the father at the times set out below upon the father providing the mother with twenty one (21) days’ written notice via registered post or email:
(a)one weekend of every calendar month, during school terms either in Melbourne or Queensland at the father's election (but will not include the weekend of Mother's Day) with air travel for the children on such weekends to take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);
(b)a second weekend of every calendar month, during school terms in Melbourne (this contact will not include the weekend of Mother's Day) with air travel for the children on such weekends will take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);
(c)Easter weekend in even numbered years, from after school Thursday until 5.00pm Monday;
(d)for one half of all the children's school Term 1 and 3 (Victorian) holidays being the first half in even numbered years and the second half in odd numbered years;
(e)for the whole of the children’s school Term 2 (Victorian) holidays; and
(f)for a twenty eight (28) day period in each Christmas school holiday period (Victorian) being the first twenty eight (28) days in even numbered years and the last twenty eight (28) days in odd numbered years.
The children (or any one of them) shall only access the internet, use electronic games and view television under the supervision of an adult.
The parties, their servants…

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 HOWARD & SWANN

Details

AGLC: Howard and Swann [2015] FCCA 1950
Case: [2015] FCCA 1950
Decision Date: 31 July 2015

CaseChat Overview and Summary

This matter concerned parenting orders for two children, X and Y, born in 2003 and 2005 respectively. The dispute involved the father, Mr Howard, and the mother, Ms Swann, regarding the children's living arrangements and time spent with each parent. The case was heard by Judge Curtain.

The court was required to determine the specific terms of parenting orders that would govern the children's lives, including where they would live, the schedule for time spent with each parent, communication arrangements, and provisions for travel and education. The court also considered the children's preferences and the impact of parental conflict on their well-being.

The court's decision was made by consent of the parties, resulting in a comprehensive set of orders. These orders established that both parents would retain equal shared parental responsibility. The children were ordered to live with the mother, with detailed provisions for the children to spend time with the father, including specific weekend arrangements, school holiday allocations, and travel protocols. The orders also addressed supervision of internet use and television, the manner in which children should address their parents, and the mother's relocation to a suitable family residence. Further provisions were made regarding communication between parents and children, including daily contact arrangements and the facilitation of contact with extended families. The court also made orders concerning the children's passports, international travel, and the process for resolving future disputes or variations to the parenting arrangements, including mandatory counselling for the parents. All prior restraining orders concerning the children's removal from Australia were discharged, and their names were to be removed from the Airport Watch List.

Orders

Orders of the court

BY CONSENT

All previous Orders made in relation to the children, X born on (omitted) 2003 (“X”) and Y born on (omitted) 2005 (“Y”), collectively, (“the children”) be discharged.

The father and the mother retain equal shared parental responsibility.

IT IS ORDERED THAT:

The children live with the mother.

The children shall spend time with the father at all times agreed upon between the parties in writing. Failing agreement, the children shall spend time with the father at the times set out below upon the father providing the mother with twenty one (21) days’ written notice via registered post or email:

(a) one weekend of every calendar month, during school terms either in Melbourne or Queensland at the father's election (but will not include the weekend of Mother's Day) with air travel for the children on such weekends to take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);

(b) a second weekend of every calendar month, during school terms in Melbourne (this contact will not include the weekend of Mother's Day) with air travel for the children on such weekends will take place between after school Friday departure and 8.00pm Melbourne arrival Sunday (or Monday if a public holiday weekend);

(d) for one half of all the children's school Term 1 and 3 (Victorian) holidays being the first half in even numbered years and the second half in odd numbered years;

(e) for the whole of the children’s school Term 2 (Victorian) holidays; and

(f) for a twenty eight (28) day period in each Christmas school holiday period (Victorian) being the first twenty eight (28) days in even numbered years and the last twenty eight (28) days in odd numbered years.

The children (or any one of them) shall only access the internet, use electronic games and view television under the supervision of an adult.

The parties, their servants and agents shall ensure that children shall only address their parents as mother/father or any derivative of same.

IT IS ORDERED BY CONSENT THAT:

Within 6 months from this Order, the mother shall vacate her current premises at (omitted), (omitted)to live in premises in the style of a conventional, 3 bedroom or 4 bedroom family residence.

Notwithstanding any other order, if Easter weekend falls during the children's school holidays in an odd numbered year, the mother's half of the school holidays will be whichever half includes Easter.

For the purpose of calculating and determining school holidays and changeover:

(a) school holidays will commence after school on the last day of the school term;

(b) school holidays will end at 5.00pm on the day immediately prior the first day of the new school term;

(c) if there are an even number of days in the school holiday period, changeover will occur no later than 5.00pm on the last day of the first half of the school holidays;

(d) if there are an odd number of days in the school holiday period changeover will occur no later than noon on the middle day;

(e) in relation to the Christmas school holidays, whether it is an even or an odd numbered year will be determined by the date at the start of the school holiday period; and

(f) if the children are to be collected and/ or returned by anyone other than the father, the mother or any of their family members, written notice must be provided to the other party prior to the collection and/ or return.

10.

The mother and the father equally share the cost of the children’s travel pursuant to Order 4 above in the following manner:

(a) the parent with whom the children do not reside will book their travel arrangements; and

(b) the parent with whom the children reside will pay $125 per return flight per child (plus $20 per unaccompanied flight for Y until he turns 12) to the other parent, or such lesser amount as the other parent may advise if they have secured cheaper fares , within fourteen (14) days of the children having travelled on a relevant flight.

11.

In the event that the children's time with the father is to be spent in Melbourne, handover will occur either at Tullamarine Airport, the mother's residence or the (omitted) at the father's election (as stated in his notice to spend time with the children), unless otherwise agreed.

12.

In the event that the children's time with the father is to be spent in Queensland, handover will occur by the father collecting the children from the relevant Queensland airport, unless otherwise agreed.

13.

The father and the mother be permitted to contact/ communicate with the children between the hours of 7.00pm and 8.00pm each Monday, Wednesday and Friday or such other agreed days when they are spending time with the other parent (with time being in the State in which the children are located) and this contact may be by means of including telephone, text message, internet, email and video calls (such as Face Time or Skype) but not limited to any one of these forms of communication.

14.

For the purpose of communication in Order 13 above:

(a) each party shall provide the other with a mobile telephone number and/ or other relevant details on which the children can be contacted;

(b) each party shall ensure that the mobile telephone or other device on which the children can be contacted is on and charged at all relevant times and facilitate contact and communication;

(c) in the case of telephone or video calls if there is a valid reason for the mobile telephone or other device to be turned off at the relevant times or the parent is unable to answer, the parent who has the children will call or text message the other parent as soon as possible after receiving a message or missed call to allow the children to speak or to indicate that the other parent may call to speak with the children and the other parent will then have an hour from that time to contact the children where reasonable;

(d) the children will be permitted telephone contact without interruption;

(e) the father’s and the mother’s extended families (including the children’s aunts, uncles, cousins and grandparents (biological or step) shall be at liberty to make contact and communicate with the children in a similar way; and

(f) for the purposes of all contact/ communication pursuant to this order, the parent who has care of the children shall facilitate the contact/ communication and thereafter leave the children in a private area for the purposes of such contact/ communication.

15.

The parent with whom the children are spending time will establish and facilitate the children's contact/communication with the other parent on the morning of the following days:

(a) Christmas Day;

(b) Easter Sunday;

(c) the birthdays of the father and his wife and their children and the mother and her husband and their children, which, as at the date of these orders, are noted to be as follows:

(i) the father – (omitted);

(ii) the father's wife, Ms S – (omitted);

(iii) the children's half-brother, A – (omitted);

(iv) the mother – (omitted);

(v) the mother's husband, Mr M – (omitted);

(vi) the children's half-brother, B – (omitted); and

(vii) the children's half-sister, C – (omitted).

16.

The children shall be at liberty to contact/communicate with the parent who they are not with, at any reasonable time that they request, with the party caring for the children to establish, facilitate and allow that contact/communication.

17.

The mother and the father shall not by themselves, or by their servants or agents, allow the children to be left without the supervision or an adult (or a family member who is at least sixteen (16) years of age) until they are at least fourteen (14) years of age, and even then for no more than a half day during daylight hours.

18.

The mother and the father shall not by themselves, or their servants or agents, require the children to supervise their younger half siblings until they are at least fourteen (14) years of age.

19.

The father and the mother may, at their leisure, visit the children at any time they wish during their school, sport and/or extra-curricular activities.

20.

Each party notify the other immediately if either of the children requires urgent medical attention or hospitalisation while in their respective care and advise the other party of the treatment provided and the contact details for the relevant service providers upon request.

21.

This order is sufficient authority to enable each party to obtain any information relating to the children from any medical practitioner or allied health service provider responsible for treating the children.

22.

This order is sufficient to enable each party to obtain copies of the children's school reports, details of their progress and any other information that they request directly from the school in which the children may be enrolled or attend from time to time.

23.

The parties be at liberty to submit applications for the children to attend schools without the other party's approval (in order to secure a place on the waiting list) but that any actual enrolment will be the subject of discussion between the parents, with the parent with whom the children reside being able to make the final decision should the parents not agree.

24.

Neither party shall denigrate and that both parties use their best endeavours to ensure that no third party denigrates the other parent or their partner, friends or family members to or in the presence of or hearing of the children.

25.

The parties keep each other informed in writing of any change to their email or residential address or home or contact telephone numbers within twenty four (24) hours of the date of the change.

26.

The children's names, X and Y, shall remain unchanged.

27.

All prior Orders restraining the removal of the children, X born (omitted) 2003 and Y born (omitted) 2005 from the Commonwealth of Australia be and are hereby discharged.

28.

The Australian Federal Police remove the name of the children, X born (omitted) 2003 and Y born (omitted) 2005 from the Airport Watch List at all points of international arrivals and departures in Australia.

29.

The mother's former solicitors, Belleli King & Associates, shall release the children's passports with the passport of X to be held by the mother and the passport of Y to be held by the father, with each of the parties to provide the passport they hold to the other at least fourteen (14) days prior to any overseas travel notified pursuant to Order 30 below and with the passports to be returned to the holding parent within fourteen (14) days of the child's return to Australia.

30.

If the father or the mother intend to travel outside of Australia with the children, they shall only travel to Hague Convention countries and shall provide the other party with thirty (30) days prior written notice of such travel, such notice shall include the details on how the other parent can contact the children while they are overseas as well as the details of their itinerary, flights and accommodation (including dates, times and address/es).

31.

If the father or the mother intend to travel outside of Australia ('1 without the children, they shall provide the other parent with forty five (45) days prior written notice and the first option to care for the children when they would otherwise be ordinarily in their care during that time of travel.

32.

If the children request a variation to these parenting arrangements, the parties will discuss the proposed variation with a view to making any necessary amendments to these orders and, if they are unable to agree on any such amendments, the parties will attend mediation with a view to resolving the matter, at the equal expense of the parties.

33.

Each of the father and the mother shall attend such counselling with Mr V, Clinical Psychologist (or other such counsellor nominated by him) to assist the parties in communicating with each other in relation to the children including but not limited to exercising equal shared parental responsibility with such counselling will be at the equal expenses of the parties and each party shall request their spouse attend such counselling, if requested by the psychologist/counsellor.

34.

All extant applications be otherwise dismissed.

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 Annexure A and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As mentioned earlier in my judgment, this was undertaken by Mr V and was dated 29 October 2014. He was cross examined by both Counsel and in my view, his conclusions which follow, were not compromised or eroded in any way:“43. Compared to his sister, Y was generally much more concrete in his view of the world. His presentation comparatively, lacked the detail and elaboration. He was much more matter of fact, explaining that his parents separated because they fought. There was little in the way of detail. He showed a unique idiosyncratic perspective on the separation, talking about the impact on him and the problem with travel, that he didn’t like flying and that it was disruptive. He complained that his parents don’t like ach [sic] other and that his mother calls his father names, but when I pressed him on this he told me that he could remember his mother called his father a “pig” on a single occasion but that it was not a regular or frequent event.44. Y explained that he understood that he [sic] reason for our meeting was to assist in decisions to be made about where he would reside. He thought that the Court would make the decision if his parents couldn't and that that would be based on where the Court thought the best place for him to live would be.45. Y expressed a preference to reside in Queensland. He explained that his father has a better house, he thought that his father would be able to help him more with homework, that he would be able to simply go to the refrigerator and get food when he wanted, and that there would be more family around to visit. Y seemed philosophical about the prospect that the Court would decide that he would remain in Melbourne, and whilst he stated a preference to live with his father in Queensland, I was not left with the overwhelming impression that this was a desperate wish on his behalf but rather something that he would quite like to do. Much of what Y had to say about his unhappiness in Melbourne had to do with school, school work, the amount of homework that was required of him, the fact that his mother placed pressure on him to complete that homework, that Mr M was in support of her in this regard and that this was not something he particularly like to do. He spoke positively about his parents. He described both of them as loving, caring and fair. He also described his parents' respective partners in positive terms. He identifies strongly with his father and would obviously like to spend more time with his father. I was not left with the impression that was this not to occur that Y would be emotionally devastated, but that he would be disappointed. He spoke about family life as being uncomplicated and happy.46. Psychological assessment revealed themes of conflict, winning and losing, and about parents unable to resolve their problems. The issue of schooling seemed to be very prominent in Y's presentation . He doesn't like school, would prefer to just be at home, finds school work difficult and is not particularly motivated. Significantly, when asked about general dependency needs, Y identified all of the adults in his life as being emotionally available to him, with most of his primary dependency needs being met by his parents.CONCLUSIONS:47. Matters involving relocation are complex at best. Inevitably, from both parents’ perspective, there is merit to their position. Mr & Mr [sic] seemed genuine in their motivation to have the children live with them and provide to them a quality of life, a lifestyle, opportunities, family experiences ad [sic] parental support that they believe are lacking. I am certain given my observation of the children in the company of their father and Ms S, that they have an excellent relationship, and I have no doubt as to the integrity and the motivation of Mr Howard to do what is right for his children.48. Mr Howard & Ms S were equally resolute that family life for them was happy, that the children were content, that the children are in a happy, stable environment, have friends, go to school, are involved in extensive extra curricular activity, adding that the perception of family life as presented to them from the children is not only inaccurate but self serving on behalf of Mr Howard & Ms S. Ms S in particular described it as ridiculous and crazy to suggest that the children were ignored, not fed, not looked after, burdened with the responsibility of caring for their younger siblings and that this was excessive. Her parenting style is clearly different to that of Mr Howard, but she feels that she expects a reasonable level of cooperation from the children, that it is not unreasonable for her to expect that the older children assist with the younger ones, and that the children are old enough to get themselves to and from school. To a large extent this seems to me to fall within the realm of both normal and different expectations. 49. X and Y are clearly both stressed by the issue of relocation. X in particular is highly ambivalent. She is happy at school, she has friends and she is looking forward to secondary school. She loves her little sister C and particularly enjoys doting on her. She takes a pseudo parental like stance and involvement, but this is with the assistance and support of her mother. I do not consider this to be excessive or burdensome. 50. Y would like to live in Queensland. He sees that there are certain physical and material benefits and has a somewhat idealized view of what life will be like there. School is a source of particular difficulty for Y. He is not motivated and not interested, and perceives his mother and Mr M’s expectations as burdensome and onerous. He believes that life will be easier in Queensland because his father will be more supportive and more understanding; this may or may not be the case.51. Significantly, one of the issues that was in agreement amongst all family members was that the relationship between Mr Howard and Ms Swann is a difficult one. X in particular was particularly articulate about the unspoken communications conveyed by her parents, the clear message of restraint, the negativity, the hostility, and the anger that they feel towards each other that is deposited in her. Y spoke less about this and generally he was more concrete. I suspect that for both children, they have a clear understanding about the message of restraint and that they are very much triangulated. 52. In some regards this matter is paradoxically simple. If the children were to move to Queensland I am certain that their development would progress well, that they would be happy, they would develop an excellent relationship with Mr Howard & Ms S, that they would quickly adapt and that they would maintain a good relationship with their mother, Mr M and their siblings. It is also my view that the same will continue to be true if they remain in Melbourne, that is, that they will continue to have a good relationship with Mr Howard & Ms S and enjoy the time spent with them. However they also clearly have a sense of belonging, they feel connected, they are a part of the family and quite rightfully, as identified by Ms Swann, there are no real issues of risk, mental health problems, alcohol, violence or anything to suggest that the children's best interests will be served if they are removed, let alone that the children's development or emotional welfare is compromised.53. As a rule, when trying to establish effective parenting plans, the aim is to minimize loss, maximize time with both parents and to do so in a manner that is developmentally sensitive to each child’s age and stage. The problem with relocation, is that fundamentally, it compromises these basic tenants. From my perspective, the children appear to be doing well, are happy, they are not excessively burdened or troubled, they have an excellent relationship with both parents and I expect that this will continue. The problem is not the children or their level of care, but rather the level of conflict between their parents, the poor communication and the deep chasm that the children feel as a consequence.54. Obviously a testing of evidence and new information may change these recommendations significantly. Based on the information available, it is difficult to see how a change in the living arrangements would actually be to the benefit of the children; I have no doubt that the children would thrive and do equally well were they to move to Queensland to live with their father, but it is difficult to conclude that they would do better.”

Ratio Decidendi

Legal Principle Established

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