Jacobs and Jacobs (No. 2) - [2015] FCCA 1043

FEDERAL CIRCUIT COURT OF AUSTRALIA

JACOBS & JACOBS (No. 2)

[2015] FCCA 1043

Catchwords:
FAMILY LAW – Parenting – children aged 15, 14, 12 & 11 – parents have been litigating on and off since 2007 – applications for final orders made in 2007, 2011 and 2013, two by the mother and one by the father – family reports prepared in 2008 and 2013 – orders for the return of the children to the mother made in 2007 and 2013 – contravention applications filed by the father in 2008 and 2012 – where children have been spending time with the father without incident since the last blow-up between the parties in January 2013 – where the father consents to an order that the mother have sole parental responsibility but otherwise largely wants the existing orders to continue – where the father did not attend the hearing – where the mother presses for orders which will reduce the children’s time with the father and have him declared a vexatious litigant – not in the children’s best interests to reduce their time with the father – grounds for having the father declared a vexatious litigant not made out.

Legislation:

Family Law Act1975 Cth ss.60CC, 61DA, 102QB, 118

Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Godfrey & Sanders [2007] FamCA 102
Hungerford & Tank [2007] FamCA 637
Jacobs & Jacobs (2009) FMCAfam 719
King & Finneran ( 2001) FLC 93-079
Langmeil & Grange (2013) FamCAFC 31
Mazorski & Allbright (2008) FamLR 518

Rice & Asplund [1979] FLC 90-725
SPS & PLS [2008] FamCAFC 16

Applicant:

MS JACOBS

Respondent:

MR JACOBS

File Number:

NCC 2893 of 2007

Judgment of:

Judge Terry

Hearing date:

20 November 2014

Date of Last Submission:

20 November 2014

Delivered at:

Tamworth

Delivered on:

29 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

Solicitors for the Applicant:

Slater & Gordon Lawyers

The Respondent:

No appearance

Counsel for the Independent Children’s Lawyer:

Mr Weightman

Solicitors for the Independent Children’s Lawyer:

Brennan Garrick Lawyers

ORDERS

Save for the following orders (2) to (5) inclusive the orders concerning W born (omitted) 1999, X born (omitted) 2000 Y born (omitted) 2002 and Z, born (omitted) 2004 made on 17 August 2012 remain in force.
Order 2 of the Orders made on 17 August 2012 is discharged and subject to Order (3) herein the mother shall have sole parental responsibility for the children.
The mother shall not change the children’s names or relocate the children’s place of residence to a different town without the consent of the father in writing or an order of the court.
The mother shall advise the father by email or text message within 7 days of any decision she makes about major long term issues for the children.
Order 12 of the Orders made on 17 August 2012 is varied to omit all references to Sunday to the effect that telephone communication or face time communication shall take place between the children and each party only on…

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 Jacobs and Jacobs (No. 2)

Details

AGLC: Jacobs and Jacobs (No. 2) [2015] FCCA 1043
Case: [2015] FCCA 1043
Decision Date: 29 April 2015

CaseChat Overview and Summary

In Jacobs and Jacobs (No. 2), heard before Judge Terry, the parties were the mother and father of four children. The dispute concerned various orders relating to the children's welfare, including parental responsibility, communication, relocation, and changeover arrangements. The mother also sought to have the father declared a vexatious litigant.

The court was required to determine several legal issues. These included whether to vary the existing orders regarding parental responsibility, specifically whether the mother should have sole parental responsibility. The court also had to consider applications to change the children's names or relocate them, the terms of communication between the children and each parent, and the location for changeovers. Furthermore, the court needed to assess the mother's application to declare the father a vexatious litigant.

In reaching its decision, the court applied the principles of the *Family Law Act*, particularly section 60CC, which mandates consideration of the children's best interests. This involved weighing the benefit of a meaningful relationship with both parents against the need to protect the children from harm. The court found that both parents were suitable and that the children had a meaningful relationship with each. The court noted that while conflict existed, it primarily concerned day-to-day issues and interpretation of orders, not major long-term decisions, and that there was insufficient evidence to warrant a change in shared parental responsibility. The court also considered the children's views and maturity, and the desirability of discouraging further litigation.

The court made several orders, including discharging the order for sole parental responsibility and maintaining shared parental responsibility, subject to specific limitations on the mother changing the children's names or relocating them without the father's consent or a court order. The mother was also ordered to inform the father of decisions regarding major long-term issues. Communication arrangements were varied to exclude Sundays, and the mother's application to declare the father a vexatious litigant was dismissed.

Orders

Orders of the court

Save for the following orders (2) to (5) inclusive the orders concerning W born (omitted) 1999, X born (omitted) 2000 Y born (omitted) 2002 and Z, born (omitted) 2004 made on 17 August 2012 remain in force.

Order 2 of the Orders made on 17 August 2012 is discharged and subject to Order (3) herein the mother shall have sole parental responsibility for the children.

The mother shall not change the children’s names or relocate the children’s place of residence to a different town without the consent of the father in writing or an order of the court.

The mother shall advise the father by email or text message within 7 days of any decision she makes about major long term issues for the children.

Order 12 of the Orders made on 17 August 2012 is varied to omit all references to Sunday to the effect that telephone communication or face time communication shall take place between the children and each party only on Wednesdays, the children’s birthdays and Christmas Day.

The mother’s application for changeover to occur at (omitted) is dismissed noting for the avoidance of doubt that the effect of this is that as the extension to the (omitted) Freeway has been completed Order 10 of the orders made on 17 August 2012 which provides for changeovers to occur at (omitted) prevails.

The mother’s application for the father to be declared a vexatious litigant pursuant to s.118 of the Family Law Act is dismissed.

If the mother wishes to seek an order for costs she must within 28 days of the date of these orders file and serve an application in a case and a submission setting out the amount of costs sought and the grounds which she submits justify an order for costs and the father must within 14 days of being served with the mother’s application in a case and submission file a response to the application in a case and a submission setting out the grounds which he says justify the dismissal of the application.

Background

Background to the litigation

I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the child that the court thinks are relevant. In this case there is nothing relevant to this sub-section which needs to be considered separately. I must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. Both parents have been wanting in this respect on occasions since separation. I must consider any family violence involving the children or a member of the children's family but there is none and nor have there ever been any family violence orders. I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. There is no order I can make which will guarantee this. There was simply no evidence that a reduction in the children’s weekend time in (omitted) during school terms or a reduction in their Term 3 school holiday time or the removal of the time in (omitted) would be orders least likely to lead to further proceedings. An order that the children spend no time with the father would remove any immediate opportunities for conflict but Ms K pointed out that such an order would be very difficult for the children to accept and the mother did not seek it. I must consider any other fact or circumstance that the court thinks is relevant. The mother complained in her affidavit about the father sometimes being half an hour late for changeovers and about him making his wishes about where the children should live known to children but did not explain how a reduction in the children’s time was likely to solve these problems. It is clear from the family report interviews that the children are capable of making up their own minds about where they want to live. A final relevant matter is that it is very important for the children’s sake that both parents are discouraged from pursuing applications in this court. The parties have had equal shared parental responsibility for the children since the proceedings commenced in 2007. The mother sought an order for sold parental responsibility in 2013 and Ms K in her report recommended that the parties not share parental responsibility. The evidence in the mother’s affidavit about any consequences of the parties incapacity to discuss and reach agreement about major long term issues was limited and may well not have borne the weight of establishing that there was any need to change the current order about parental responsibility. There was no evidence in the mother’s affidavit that the parents being required to share parental responsibility was causing conflict and the conflict the mother and father both referred to and the conflict which concerned Ms K was over day to day issues and interpretation of the orders, not over major long term decisions.

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

To determine the children’s best interests I must have regard to the primary and additional considerations in s.60CC(2) & (3) of the Family Law Act and the primary considerations in s.60CC(2) are: a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. S.60CC (2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b). The children have a meaningful relationship with both their parents at present in other words a relationship which is significant valuable and important to them[4] and they will benefit from that situation continuing. [4] Mazorski & Allbright (2008) FamLR 518 When the parents are not fighting with each other they are upstanding valuable members of the community. The mother is a (occupation omitted) although she was not working at the time of the trial. She does not have drug or alcohol or mental health issues or a criminal record and is eminently suitable to be part of the children’s lives. The father is a (occupation omitted) employed by (employer omitted). He also does not have any drug or alcohol or mental health issues or a criminal record and is also eminently suitable to be part of the children’s lives. This first primary consideration does not help me to resolve the dispute in this matter however because a reduction in the children’s time with the father as sought by the mother will not prevent the children continuing to have a significant valuable and important relationship with the father. It will certainly reduce his opportunity to be involved with the children but this is better considered in the context of trying to assess the likely effect of any change in the children’s circumstances and in any event as Justice Kay said in Godfrey & Sanders:What the legislation aims to promote is a meaningful relationship, not an optimum relationship.[5][5] Godfrey & Sanders [2007] FamCA 102 An increase in the children’s time with the father by one weekend each school term will also not make any difference to whether the children can have a meaningful relationship with him. The children are not at risk of being exposed to or subjected to abuse neglect or family violence in the care of either of their parents. In January 2013 the father raised concerns about Mr G but as it turned out there was nothing (for example confirmation by any of the children of any serious complains to Ms K, avoidance of the step-father by the children during the observation session, police records about the step-father) which suggested that the complaints had merit and the father by dropping out of the proceedings has chosen not to pursue them. The second primary consideration does not assist me either. The first of the additional considerations in s.60CC(3) is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.