Howell and Garson - [2016] FCCA 2635

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & GARSON

[2016] FCCA 2635

Catchwords:
FAMILY LAW – Parenting dispute regarding change of private schools – whether change of schools is in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3)(b), (d) and (m)

Applicant:

MR HOWELL

Respondent:

MS GARSON

File Number:

SYC 4888 of 2009

Judgment of:

Judge McNab

Hearing date:

7 September 2016

Date of Last Submission:

7 September 2016

Delivered at:

Melbourne

Delivered on:

7 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr R Hoult

Solicitors for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Ms H Dellidis

Solicitors for the Respondent:

Nicholes Family Lawyers

ORDERS

UPON JUDGMENT DELIVERED THIS DAY, THE COURT ORDERS THAT:

Order 17 of the Orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary to enrol X (“X”) born (omitted) 2006 at (omitted) School and facilitate her attendance at that school from the commencement of Term 1 in 2017.
Paragraph 5 of the Orders made 10 November 2011 be varied so that X lives equally with both parties on a week about basis with changeover to occur at the conclusion of school Monday or at the conclusion of school the next school day in the event that Monday is a non-school day, with such week about arrangement to continue throughout the year including the first and second school term holidays, with changeover to occur at 5pm Monday if it occurs during a school term holiday period.
Order 7 of the Orders made 10 November 2011 be varied to apply to the Term 3 and Term 4 long summer school holidays, subject to Order 4 and 5 herein.
For the Term 3 school holidays each year, unless otherwise agreed between the parties in writing:
(a)X live with the Father for the first half in 2017 and each alternate year thereafter; and
(b)X live with the Mother for the second half in 2017 and each alternate year thereafter,
(c)with the week-about living arrangements to resume thereafter as if the holidays had not occurred.
The Term 4 long summer holidays each year be quarantined from the week about arrangements such that X live with the parties as follows:
(a)In accordance with paragraph 5 of the orders of 10 November 2011 (as varied herein) until 12 noon on Christmas Eve and thereafter the remainder of the summer school holiday period up and until the day X attends school be shared equally with:
(b)The mother to have the first half in even numbered years; and
(c)The father to have the first half in odd numbered years.
(d)In the event that there is an odd number of nights in the summer school holiday period the parent who has the first half of the holidays shall have the extra night.
(e)The week about living arrangements shall resume on first day of school as if the summer school holidays had not occurred (noting that such commencement date…

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 Howell and Garson

Details

AGLC: Howell and Garson [2016] FCCA 2635
Case: [2016] FCCA 2635
Decision Date: 7 October 2016

CaseChat Overview and Summary

This matter concerned an application by the parties, Howell and Garson, before Judge McNab. The dispute revolved around the arrangements for their child, X, specifically concerning her schooling and living arrangements. The court was asked to vary existing orders made on 10 November 2011 and 1 May 2012.

The court was required to determine several legal issues, including the enrolment and attendance of X at a particular school, the nature of the week-about living arrangements between the parties throughout the year, and the specific division of time during school holidays, including Term 3 and the long summer holidays. Additionally, the court considered provisions for the care of X if one parent was unavailable and the obligation of each parent to ensure X's participation in school events.

Judge McNab's reasoning focused on establishing clear and practical arrangements for X's schooling and living schedule. The court varied the existing orders to facilitate X's enrolment and attendance at a specified school from the commencement of Term 1 in 2017. The week-about living arrangements were modified to occur on a consistent basis, including during school holidays, with specific changeover times and procedures. The court also detailed how the Term 3 and long summer holidays would be divided, introducing a system of alternating halves between the parents, with specific provisions for Christmas Eve and the remainder of the summer break. The court also incorporated clauses regarding the first option for care if a parent was unavailable and ensured that both parents were responsible for X's attendance at school events.

The court ordered that Order 17 of the previous orders be discharged and replaced with provisions for X's enrolment and attendance at the specified school. Paragraph 5 of the previous orders was varied to implement the week-about living arrangements with specific changeover times. Orders concerning Term 3 and Term 4 holidays were also varied to establish a clear division of time between the parents. Provisions were made for the care of X if a parent was unavailable, and both parties were ordered to ensure X's attendance at school events. The balance of the previous orders, including those for Christmas, were to remain in full force and effect, and all extant applications were dismissed. The court also noted that the parties agreed to an option for one parent to have X for the entirety of the Term 3 holidays, subject to notice, and that particulars of obligations and consequences of contravention were set out in an annexure.

Orders

Orders of the court

UPON JUDGMENT DELIVERED THIS DAY, THE COURT ORDERS THAT:

Order 17 of the Orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary to enrol X (“X”) born (omitted) 2006 at (omitted) School and facilitate her attendance at that school from the commencement of Term 1 in 2017.

Paragraph 5 of the Orders made 10 November 2011 be varied so that X lives equally with both parties on a week about basis with changeover to occur at the conclusion of school Monday or at the conclusion of school the next school day in the event that Monday is a non-school day, with such week about arrangement to continue throughout the year including the first and second school term holidays, with changeover to occur at 5pm Monday if it occurs during a school term holiday period.

Order 7 of the Orders made 10 November 2011 be varied to apply to the Term 3 and Term 4 long summer school holidays, subject to Order 4 and 5 herein.

For the Term 3 school holidays each year, unless otherwise agreed between the parties in writing:

(a) X live with the Father for the first half in 2017 and each alternate year thereafter; and

(b) X live with the Mother for the second half in 2017 and each alternate year thereafter,

The Term 4 long summer holidays each year be quarantined from the week about arrangements such that X live with the parties as follows:

(a) In accordance with paragraph 5 of the orders of 10 November 2011 (as varied herein) until 12 noon on Christmas Eve and thereafter the remainder of the summer school holiday period up and until the day X attends school be shared equally with:

(b) The mother to have the first half in even numbered years; and

(d) In the event that there is an odd number of nights in the summer school holiday period the parent who has the first half of the holidays shall have the extra night.

(e) The week about living arrangements shall resume on first day of school as if the summer school holidays had not occurred (noting that such commencement date may fall at any day in the Monday to Monday week).

If the Father is unavailable to care for X for a period of two or more nights, the Father shall provide first option to the Mother to care for X during such period.

If the Mother and her Husband, Mr R, are unavailable to care for X for a period of two or more nights, the Mother shall provide first option to the Father to care for X during such period.

Both parties must ensure X attends at all school camps, excursions or other school events that coincide with X being in their care.

Save as provided for in these Orders, the balance of the Orders made 10 November 2011 including Orders 9 and 10 for Christmas continue in full force and effect.

10.

The Orders made 1 May 2012 continue in full force and effect.

11.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. The parties agree that the parent who has X in their care for the first half of the Term 3 holidays shall have the option, upon 42 days’ written notice to the other, to have X in their care for the entirety of the Term 3 holidays, with the week-about arrangements to resume thereafter as if the holidays had not occurred.

B. 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.