HYLAND & VACEK - [2018] FCCA 2486

FEDERAL CIRCUIT COURT OF AUSTRALIA

HYLAND & VACEK

[2018] FCCA 2486

Catchwords:
FAMILY LAW – Parenting orders – relocation – young children with cystic fibrosis – family in rural town.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC & 65DAA

Cases cited:

Mallahan & Mallahan [2010] FamCA 631

McCall & Clark (2009) 41 Fam LR 483

Mazorski & Albright (2007) 37 Fam LR 518

Applicant:

MS HYLAND

Respondent:

MR VACEK

File Number:

ADC 3397 of 2016

Judgment of:

Judge Cole

Hearing dates:

19, 20 & 21 July 2017, 9 & 10 November
2017 & 20 February 2018

Date of Last Submission:

1 August 2018

Delivered at:

Adelaide

Delivered on:

6 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dillon

Solicitors for the Applicant:

Bersee Legal

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Mahony's Lawyers

Counsel for the Independent Children's Lawyer:

Ms Lindsay

Solicitors for the Independent Children's Lawyer:

Nicola Atchison

ORDERS

That the parties have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2013.
That the parties be restrained and injunctions are hereby granted restraining each party from changing the said children’s primary place of residence to a place outside a 10 kilometre radius of Town A without the prior written consent of the other party.
That the said children live with each of the parties on a shared care arrangement as follows:
(a)On a week about basis commencing Monday from the conclusion of school or 3:30pm until the conclusion of school (or 3:30pm) the following Monday and each alternate week thereafter with the said children to be cared for by the mother from the conclusion school (or 3:30pm) Monday until the conclusion of school (or 3:30pm) the following Monday every other week;
(b)The said children spend Easter with the mother each alternate year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2019, with the said children to spend time with the father every other year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2020.
(c)For the purposes of Christmas the said children live with:
(i)the mother from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2018; and
(ii)the father from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2019.
That the parent with whom the said children are not living spend time with the said children on each of the said children’s birthdays as follows:
(a)From the conclusion of school until 7:00pm if the birthday falls on a school day, and
(b)In the event of the birthday falling on a non-school day for four (4) hours at times to be agreed between the parties and failing agreement between 1:00pm and 5:00pm.
That handovers that do not take place at the said children’s place of education take place at the (omitted) Service Station in Town…

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 HYLAND & VACEK

Details

AGLC: Hyland and Vacek [2018] FCCA 2486
Case: [2018] FCCA 2486
Decision Date: 6 September 2018

CaseChat Overview and Summary

This case involved parenting orders concerning two young children, [X] and [Y], born in 2011 and 2013 respectively. The dispute centred on the children's primary place of residence, with one parent seeking to relocate them outside a specified radius of Town A. The matter was heard by Judge Cole.

The court was required to determine the appropriate parenting arrangements for the children, specifically addressing the issue of relocation. Key considerations included the children's young age, their significant medical needs due to cystic fibrosis, their established relationships with both parents and extended family, and the adequacy of support structures in Town A compared to a potential relocation. The court also had to assess the concerns raised by each parent regarding the other's attendance at essential medical appointments.

Judge Cole's reasoning emphasised the children's high needs and their reliance on parental and community support. The court noted the children's good relationships with both parents and the established support systems within Town A, including the school's awareness and preparedness for their medical conditions. The court found it difficult to ascertain the proposed school arrangements in Adelaide and assess whether it could adequately cater for the children's specific needs. The established community and support structures in Town A were considered significant factors in favour of maintaining the status quo.

The court ordered equal shared parental responsibility and a week-about shared care arrangement for the children. Crucially, it imposed an injunction restraining either parent from changing the children's primary place of residence to a location outside a 10-kilometre radius of Town A without the other's written consent. Further orders detailed specific arrangements for time with each parent, including during holidays and birthdays, and addressed communication, medical information sharing, and parental conduct. The court also made orders to prevent the removal of the children from Australia without consent and placed their names on the Family Law Watchlist for seven years.

Orders

Orders of the court

That the parties have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2013.

That the parties be restrained and injunctions are hereby granted restraining each party from changing the said children’s primary place of residence to a place outside a 10 kilometre radius of Town A without the prior written consent of the other party.

That the said children live with each of the parties on a shared care arrangement as follows:

(a) On a week about basis commencing Monday from the conclusion of school or 3:30pm until the conclusion of school (or 3:30pm) the following Monday and each alternate week thereafter with the said children to be cared for by the mother from the conclusion school (or 3:30pm) Monday until the conclusion of school (or 3:30pm) the following Monday every other week;

(b) The said children spend Easter with the mother each alternate year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2019, with the said children to spend time with the father every other year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2020.

(i) the mother from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2018; and

(ii) the father from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2019.

That the parent with whom the said children are not living spend time with the said children on each of the said children’s birthdays as follows:

(a) From the conclusion of school until 7:00pm if the birthday falls on a school day, and

(b) In the event of the birthday falling on a non-school day for four (4) hours at times to be agreed between the parties and failing agreement between 1:00pm and 5:00pm.

That handovers that do not take place at the said children’s place of education take place at the (omitted) Service Station in Town A or such other places as agreed between the parties in writing.

That the parent with whom the said children are not residing be at liberty to telephone or Skype the said children every second night the said children are not in his/her care for up to 20 minutes duration as long as such contact is initiated prior to 8:00pm, NOTING that the parent with whom the said children are residing shall ensure that their nominated telephone/device is available to receive such communication and that they will facilitate the communication between the said children and the other parent.

That until further Order each party, (MS HYLAND date of birth 1986 and MR VACEK date of birth 1986) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children ([X] born on 2011 and [Y] born on 2013) from the Commonwealth of Australia without the prior written consent of the other party for a period of seven (7) years.

IT IS REQUESTED that the Australian Federal Police give effect to the order contained in paragraph (7) above, by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.

That the parties have liberty to obtain information from the said children’s kindergarten or school that is normally provided to parents including but not limited to school newsletters, school reports and school photographs and to attend any events which parents are normally invited including but not limited to school assemblies, school concerts, sports days and parent teacher interviews.

10.

That the parties shall keep each other informed of their current residential address and mobile telephone number and advise the other of any changes to same within twenty-four (24) hours.

11.

That both parties shall keep each other informed in writing of all specialists, general medical practitioners, allied health professionals, psychologists, counsellors, or therapists whom the said children may consult with from time to time and advise as soon as is practicable of any appointment date and time, the name and contact details of the practitioner being consulted and the purpose of the consultation.

12.

That both parties be at liberty to speak to, obtain information from and attend any consultation with any specialists, general medical practitioner, allied health professional, psychologist, counsellor or therapist whom the said children may consult with from time to time and this Order be hereby taken as authorising such attendance and/or consultation.

13.

That each of the parties shall advise the other as soon as possible of any medical emergency or serious childhood illness affecting the said children whilst in his/her care.

14.

That the parties be restrained and injunctions are hereby granted restraining each of them from:

(a) Consuming any illicit substance or misusing prescription medication for twenty-four (24) hours prior to or during any period the said children are in his or her care;

(b) Attending at any school that the said children may attend from time to time other than for events that the parents are normally invited to attend and/or at the specific request of the school, during the week the said children are not in their care;

(c) Insulting, abusing, denigrating or threatening the other party in the presence of or within the hearing of the said children or allowing any third person to do so;

(d) Insulting, abusing or using physical discipline on or in front of the said children or allowing any other person to do so;

(e) Discussing these proceedings with the said children or allowing the said children to read any document filed in these proceedings or allowing any other person to do so; and

(f) Posting any information on any social media platform regarding the other party, the other party’s family, these proceedings or any allegations made in these proceedings or allowing any other person to do so.

15.

That the parties each take such steps as may be required to ensure the said children attend upon their South Australian treating health professionals at the earliest available date.

16.

That the parties take such steps as are reasonably required to ensure that they follow the directions of the said children’s treating health professionals as to school attendance and otherwise in respect of their cystic fibrosis treatment.

17.

That each of the parties be at liberty to attend upon the said children during any period of medical treatment, to attend any medical appointment and to attend upon the said children in hospital subject only to the direction of the medical provider and/or hospital to such attendances.

18.

That each of the parties be at liberty to participate and engage in the said children’s education and medical treatment to such extent as the providers of the same may consider appropriate from time to time.

19.

That in the event of the inability of the parties to agree as to medical treatment of the said children each party shall participate in family dispute resolution conferencing within the community prior to the commencement of further litigation other than enforcement proceedings upon which they may be advised.

20.

That the proceedings be otherwise dismissed.

21.

That the appointment of the Independent children’s Lawyer be hereby discharged.

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

Additional considerations are: These children are very young. All parties appear to have taken the position that it is inappropriate to place any responsibility upon their shoulders at their relatively young age. It does appear to be common ground that the children have a good relationship with each of their parents. There is no dispute that these are children with high needs due to their cystic fibrosis and they rely heavily on the support of their respective parents and their families. The maternal grandmother has also had a significant role with the children. She resides on a farm located outside of Town A. While she may well be able to maintain her relationship with the children should they move to Adelaide, the barrier of distance will make it that much harder. The paternal grandmother resides in Adelaide however as at the date of trial still had a house in Town A. There was no adverse comment with respect to her relationship with the children. This issue was the subject of some controversy. Each parent raise concerns about the other’s attendance at essential medical appointments for the children. Whilst the father missed two appointments during the time he was in Town B with the children, the evidence would support a conclusion that he has been a regular attender at the Hospital A with the children for the purposes of their check-ups and ongoing medical treatment. This does not appear to be the case with the mother. I am not certain however that an extensive examination of this topic will get me past the concession that the children have a good relationship with each parent and enjoy the time in each parent’s company knowing that they are equally loved and cared for by each of their parents. This was not an issue that was pushed during the course of the trial. This is a significant issue for the children. The evidence would support a conclusion that they are well established within the township of Town A. There is no dispute that Town A is a small rural community which has some reliance on seasonal tourist trade. The township is aware of the issues faced by the children with their cystic fibrosis. The township also appears to be aware of the issues should the children come into contact with the child [C] who suffers a more severe form of cystic fibrosis. The school appears to have taken significant steps to cater for both children being at school and that issue appears to be well in hand. I accept the evidence supports a conclusion that the school and community are alive to the issue and have systems in place to deal with it. It is difficult to clearly identify which school the mother proposes the children attend should her application be successful. More importantly, I am unable to assess whether the school would have systems in place to deal with children with the needs of [Y] and [X], and if not, how long it would take to ensure that the school was a safe place for these children. In the event of the children moving to reside in Adelaide, they would be leaving behind the community they grew up in, the friends they have made, and the support structures put in place to ensure that they could go and thrive as best as they may, in the face of the challenges they must encounter.