Jardine and Jardine-Roseby - [2014] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARDINE & JARDINE-ROSEBY

[2014] FCCA 652

Catchwords:
FAMILY LAW – Interim parenting – school that child should attend – high conflict.

Legislation:

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

MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346
Re G: Children’s Schooling [2000] FamCA 462

Applicant:

MR JARDINE

Respondent:

MS JARDINE-ROSEBY

File Number:

WOC 274 of 2014

Judgment of:

Judge Altobelli

Hearing date:

30 March 2014

Date of Last Submission:

30 March 2014

Delivered at:

Wollongong

Delivered on:

1 April 2014

REPRESENTATION

Solicitors for the Applicant:

Southern Waters Legal

Solicitors for the Respondent:

Mr R

ORDERS

The parents have equal shared parental responsibility for the child, [X] born [in] 2004.
The parents have sole parental responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is living with or spending time with them respectively.
The child live with the Father at all time when not living with the Mother.
The child live with the Mother each alternate week from after school on Thursday to before school on Tuesday commencing 3 April 2014 noting that the child is currently in the Mother’s care and further noting that it is not the intention of these Orders to cause [X] to be returned to his Father’s care before 3 April 2014.
The child live with the Mother for one half of each school holiday period to coincide with when her son [Y] is in her care, with such dates to be notified to the Father no later than the first Friday of the school term before such holiday period.
When the child is not living with his Father, the Father is responsible for collecting the child from the Mother’s residence and delivering him to school for the beginning of school, and at the conclusion of school, collecting him from school and delivering him to the Mother’s residence.
The Father be restrained by injunction from entering the Mother’s residence.
The child have telephone contact with the non-resident parent on each alternate day he is not living with them.
As from tomorrow, 2 April 2014, the parents are to do all things necessary to cause the child to be re-enrolled at [B] School.
Leave be granted to the Applicant Father to provide a copy of these Orders to the Principal of [B] School.
Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.
Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a Family Consultant in this Registry on 29 July 2014 at 9am. The…

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

Case: [2014] FCCA 652
Decision Date: 1 April 2014

CaseChat Overview and Summary

In the matter of *Jardine and Jardine-Roseby*, heard by Judge Altobelli, the dispute concerned parenting orders for a child born in 2004. The orders reflect a resolution reached by the parents regarding their respective responsibilities and the child's living arrangements.

The court was required to make orders concerning the parental responsibility for the child, including decision-making for day-to-day care, welfare, and development. Further issues addressed included the child's living arrangements with each parent, the allocation of school holiday periods, the practical arrangements for the transfer of the child between parents, and the child's schooling. The court also considered orders to restrain parental conduct towards each other in the child's presence and to facilitate the child's attendance at a dispute resolution conference.

The court made orders reflecting the parents' agreement, establishing equal shared parental responsibility for the child. The parents were granted sole parental responsibility for day-to-day decisions concerning the child while the child was in their respective care. The child was ordered to live with the Father at all times when not living with the Mother, with specific alternate weekly arrangements detailed. The Mother was allocated one half of each school holiday period. The Father was made responsible for the child's collection and delivery between residences and school on days the child was not living with him. An injunction was granted restraining the Father from entering the Mother's residence. The child was to have telephone contact with the non-resident parent on alternate days. The parents were ordered to re-enrol the child at a specific school and were restrained from abusing or criticising each other in the child's presence. The parties were also ordered to attend a child-inclusive dispute resolution conference.

Orders

Orders of the court

The parents have equal shared parental responsibility for the child, [X] born [in] 2004.

The parents have sole parental responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is living with or spending time with them respectively.

The child live with the Father at all time when not living with the Mother.

The child live with the Mother each alternate week from after school on Thursday to before school on Tuesday commencing 3 April 2014 noting that the child is currently in the Mother’s care and further noting that it is not the intention of these Orders to cause [X] to be returned to his Father’s care before 3 April 2014.

The child live with the Mother for one half of each school holiday period to coincide with when her son [Y] is in her care, with such dates to be notified to the Father no later than the first Friday of the school term before such holiday period.

When the child is not living with his Father, the Father is responsible for collecting the child from the Mother’s residence and delivering him to school for the beginning of school, and at the conclusion of school, collecting him from school and delivering him to the Mother’s residence.

The Father be restrained by injunction from entering the Mother’s residence.

The child have telephone contact with the non-resident parent on each alternate day he is not living with them.

As from tomorrow, 2 April 2014, the parents are to do all things necessary to cause the child to be re-enrolled at [B] School.

10.

Leave be granted to the Applicant Father to provide a copy of these Orders to the Principal of [B] School.

11.

Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.

12.

Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a Family Consultant in this Registry on 29 July 2014 at 9am. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the Court. The Applicant and Respondent are to do all things necessary to facilitate the attendance of the child promptly at the commencement of the conference.

13.

The Respondent Mother file and serve a Response within 7 days.

14.

The Respondent Mother file and serve a Notice of Address for Service within 7 days.

15.

The Respondent Mother cause to be filed at the Registry her Affidavit sworn 31 March 2014.

16.

The matter be adjourned to 11 August 2014 at 9.00am for mention.

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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