HURST & MERRITT - [2017] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

HURST & MERRITT

[2017] FCCA 3102

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether the child should live primarily with the mother or the father – issue of schooling.

Legislation:

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

Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Re G: Children’s Schooling (2000) 26 Fam LR 143

Applicant:

MS HURST

Respondent:

MR MERRITT

File Number:

SYC 5730 of 2016

Judgment of:

Judge Monahan

Hearing date:

16 November 2017

Date of Last Submission:

16 November 2017

Delivered at:

Sydney

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Sproston

Solicitors for the Applicant:

Sharon Moss Legal

Counsel for the Respondent:

Mr Kelly

Solicitors for the Respondent:

Solicitors for the Independent Children’s Lawyer:

Green & Associates

Ms Hennessey of Legal Aid New South Wales

ORDERS

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 13 March 2018 at 9.30am for directions (“the directions hearing”).
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The parties have equal shared parental responsibility for X born in 2012 (“the child”).
The child live with the mother.
The child spend time with the father as agreed in writing, and failing agreement:
During school terms
(a)In week 1 commencing in the first week of each school term, from Friday after school (or 9:00am on a non-school day) until Monday before school (or 9:00am Tuesday if there is a public holiday or a non-school day on the Monday) and each alternate weekend thereafter; and
(b)In week 2 commencing in the second week of each school term, from after school Tuesday to before school Wednesday (or 9:00am Thursday if there is a public holiday or a non-school day on the Wednesday) and each alternate week thereafter; and
During school term holidays
(c)During the school term holidays following Terms 1, 2 and 3, commencing in 2018 and in every even numbered year thereafter, for the first half; and
(d)During the school term holidays following Terms 1, 2 and 3, commencing in 2019 and in every odd numbered year thereafter, for the second half; and
During the long summer school holidays
(e)Commencing in December 2017, during the long summer school holidays as agreed between the parties;
(f)Commencing in December 2018, and each long summer school holidays thereafter, for a period of 28 days, with such times and dates to be agreed between the parties, and failing agreement as follows:
(i)In even numbered years, for the first 28 days commencing at 10:00am on the day following the last day of the school term and ending at 5:00pm 28 days later; and
(ii)In odd numbered years, for…

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.

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Details

AGLC: HURST & MERRITT [2017] FCCA 3102
Case: [2017] FCCA 3102
Decision Date: 22 December 2017

CaseChat Overview and Summary

This matter concerned applications before Judge Monahan concerning parenting arrangements for a child, X, born in 2012. The dispute revolved around the specific details of the child's time with each parent and related matters such as schooling and changeovers.

The court was required to determine the orders for equal shared parental responsibility, where the child would live, and the specific schedule for the child spending time with the father. Further issues included the parties' obligations regarding the child's enrolment and attendance at a particular school, the process for removing the child from that school, and the location for changeovers between parents. The court also needed to set a date for a directions hearing to ascertain the status of any remaining disputes and to make further directions, including potential transfer to the Family Court of Australia.

The court made orders for equal shared parental responsibility and that the child live with the mother. A detailed schedule was established for the child spending time with the father during school terms and holidays, with provisions for agreement between the parties and specific arrangements in the absence of agreement, including alternating halves of certain holiday periods and specific arrangements for public holidays. The court also ordered the parties to enrol the child at a specified school and restrained them from removing the child from that school without the other's consent. Changeovers were to occur at a designated shopping centre unless otherwise agreed. The court noted that the directions hearing would be used to determine if disputes remained and to consider further steps, including potential transfer to the Family Court.

Orders

Orders of the court

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 13 March 2018 at 9.30am for directions (“the directions hearing”).

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The parties have equal shared parental responsibility for X born in 2012 (“the child”).

The child live with the mother.

The child spend time with the father as agreed in writing, and failing agreement:

During school terms

(a) In week 1 commencing in the first week of each school term, from Friday after school (or 9:00am on a non-school day) until Monday before school (or 9:00am Tuesday if there is a public holiday or a non-school day on the Monday) and each alternate weekend thereafter; and

(b) In week 2 commencing in the second week of each school term, from after school Tuesday to before school Wednesday (or 9:00am Thursday if there is a public holiday or a non-school day on the Wednesday) and each alternate week thereafter; and

During school term holidays

(c) During the school term holidays following Terms 1, 2 and 3, commencing in 2018 and in every even numbered year thereafter, for the first half; and

(d) During the school term holidays following Terms 1, 2 and 3, commencing in 2019 and in every odd numbered year thereafter, for the second half; and

During the long summer school holidays

(e) Commencing in December 2017, during the long summer school holidays as agreed between the parties;

(f) Commencing in December 2018, and each long summer school holidays thereafter, for a period of 28 days, with such times and dates to be agreed between the parties, and failing agreement as follows:

(i) In even numbered years, for the first 28 days commencing at 10:00am on the day following the last day of the school term and ending at 5:00pm 28 days later; and

(ii) In odd numbered years, for the last 28 days commencing at 10:00am 28 days before the day immediately preceding the commencement of the new school term and ending at 5:00pm 28 days later.

(g) Commencing 2018, in even numbered years from after school (or 3:00pm on a non-school day) on the day before Anzac Day to before school on the day following Anzac Day if Anzac Day falls during the school week, and from 3:00pm the day before Anzac Day to 10:00am the day following Anzac Day if it falls on a non-school day during which the child would not otherwise be spending time with the father.

In the event that the father is unable to spend time with the child in accordance with these orders, he provide seven (7) days written notice to the mother.

For the purposes of paragraphs 5(c) and (d) herein:

(a) The school term holiday period commences on the first day after the last day of the school term at 10:00am and concludes on the last day before the commencement of the new school term at 5:00pm; and

(b) In the event that the school holiday period has an uneven number of days, then the party with whom the child spends the first half of the holiday period with shall have the extra day.

The parties do all acts and things and sign all such documents as necessary, to enrol and have the child attend at B School, C Street, Suburb D, NSW, commencing in 2018.

The parties be restrained from removing X from B Primary School without the consent of the other party.

10.

Unless otherwise agreed by the parties in writing, all changeovers that do not occur at the child’s school, occur at the Suburb R Shopping Centre.

AND THE COURT NOTES THAT:

A. The purpose of the directions hearing is to ascertain whether the parties are still in dispute in relation to the ‘non contentious’ issues, and make further directions, including consideration of listing the matter for final hearing or considering whether this matter should more appropriately be transferred to the Family Court of Australia.

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 those 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

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Ratio Decidendi

Legal Principle Established

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