Jarrett and Jarrett - [2014] FCCA 2183

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARRETT & JARRETT

[2014] FCCA 2183

Catchwords:
FAMILY LAW – Relocation application – mother under significant influence of her own mother and maternal family who hold strong and derogatory views of the father – the mental health conditions of the mother and father – mother’s proposals for the child to maintain a relationship with the father impracticable – issues of negative influence of maternal family likely to affect child’s ongoing relationship with the father.

Legislation:

Family Law Act 1975, ss.60, 61DA, 65DAA

Mazorski & Albright [2009] FamCA 520;
MRR v GR [2010] HCA 4;
Taylor & Barker [2007] FamCA 1246;
McCall & Clark (2009) FLC 93-405.

Applicant:

MR JARRETT

Respondent:

MS JARRETT

File Number:

CSC 385 of 2013

Judgment of:

Judge Willis

Hearing dates:

30 & 31 January, 26 February 2014

Date of Last Submission:

26 February 2014

Delivered at:

Cairns

Delivered on:

24 September 2014

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Victoire

Solicitors for the Respondent:

Murray & Lyons

Solicitors for the Independent Children's Lawyer:

Ms Gray

ORDERS

That all previous parenting orders made in these proceedings are discharged.

Conditions

The parenting orders for the child X born (omitted) 2007 (“the child”) as set out in these Orders, including all her living arrangements and parental responsibility will be subject to the conditions set out at Order 16 herein.

Parental Responsibility

Each of the parties have equal shared parental responsibility for major long term decisions relating to the child of the relationship, X born (omitted) 2007 (the child”), including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 3 herein the mother shall be responsible for the daily care, welfare and development of the child, when the child is living with her and the father shall be responsible for the daily care, welfare and development of the child, when the child is living with him.

Living Arrangements

The child will live with the father and mother in (omitted) Queensland on a week about basis with handover to occur at the conclusion of school each alternate Friday at the child’s school.

School Holidays

Unless otherwise agreed between the mother and father, the child will spend time with each parent during the Queensland school holidays as follows:
(a)The child will live with the mother for the first half of the school holidays in 2014 and each alternate year thereafter and the second half of…

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 Jarrett and Jarrett

Details

AGLC: Jarrett and Jarrett [2014] FCCA 2183
Case: [2014] FCCA 2183
Decision Date: 24 September 2014

CaseChat Overview and Summary

This matter came before Judge Willis concerning parenting orders for a child born in 2007. The proceedings involved disputes between the mother and father regarding the child's living arrangements, parental responsibility, and other related matters.

The court was required to determine the specific terms of parenting orders, including the allocation of parental responsibility for major long-term decisions, the child's primary living arrangements, and the arrangements for school holidays, Christmas, Easter, and other special days. Additionally, the court needed to address conditions that would apply to these orders, particularly concerning the mother's mental health, and establish protocols for communication, dispute resolution, and travel.

Judge Willis made orders discharging previous parenting orders and establishing new arrangements. Crucially, the court ordered equal shared parental responsibility for major long-term decisions, while the mother retained responsibility for the child's daily care when the child was with her, and the father when the child was with him. The child was ordered to live with the parents on a week-about basis. The orders also stipulated detailed arrangements for school holidays, Christmas, Easter, birthdays, and other special days, with specific conditions attached, particularly relating to the mother's mental health. These conditions included the suspension of the mother's parental responsibility and the child's living arrangements with her in the event of a mental health episode, requiring her to provide a report from a mental health professional upon recovery. The court also mandated attendance at a parenting program and dispute resolution services.

Orders

Orders of the court

That all previous parenting orders made in these proceedings are discharged.

Conditions

The parenting orders for the child X born (omitted) 2007 (“the child”) as set out in these Orders, including all her living arrangements and parental responsibility will be subject to the conditions set out at Order 16 herein.

Parental Responsibility

Each of the parties have equal shared parental responsibility for major long term decisions relating to the child of the relationship, X born (omitted) 2007 (the child”), including but not limited to:

(a) the child’s education (both current and future);

(b) the child’s religious and cultural upbringing;

(d) the child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree;

Notwithstanding Order 3 herein the mother shall be responsible for the daily care, welfare and development of the child, when the child is living with her and the father shall be responsible for the daily care, welfare and development of the child, when the child is living with him.

Living Arrangements

The child will live with the father and mother in (omitted) Queensland on a week about basis with handover to occur at the conclusion of school each alternate Friday at the child’s school.

School Holidays

Unless otherwise agreed between the mother and father, the child will spend time with each parent during the Queensland school holidays as follows:

(a) The child will live with the mother for the first half of the school holidays in 2014 and each alternate year thereafter and the second half of the school holidays in 2015 and each alternate year thereafter;

(b) The child will live with the father for the second half of the school holidays in 2014 and each alternate year thereafter and the first half of the school holidays in 2015 and each alternate year thereafter.

The first day after school term concludes will be deemed to be the first day of the school holidays.

Christmas

In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from (omitted) Queensland for the Christmas holidays, the parent with whom the child is living on the Christmas days will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, after which time the child will be returned to the other parent to continue on with their holiday period. The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.

Easter

10.

In the event the Easter public holidays do not form part of the school holiday period the child shall spend time with the parents as follows:

(a) The child will live with the mother from the conclusion of school on Easter Thursday until 12:00 noon on Easter Saturday in 2016 and each alternate year thereafter and from 12:00 noon on Easter Saturday until the commencement of school on the Tuesday following Easter Monday in 2015 and each alternate year thereafter.

(b) The child will live with the father from the conclusion of school on Easter Thursday until 12:00 noon on Easter Saturday in 2015 and each alternate year thereafter and from 12:00 noon on Easter Saturday until the commencement of school on the Tuesday following Easter Monday in 2016 and each alternate year thereafter.

Special Days

11.

The child will spend time with the parent that they are not otherwise living with pursuant to these Orders as follows:

(a) If the child is not otherwise living with the father, the child will spend time with the father on Father’s Day from 9:00 am until 5:00 pm.

(b) If the child is not otherwise living with the mother, the child will spend time with the mother on Mother’s Day from 9:00 am until 5:00 pm.

Birthdays

12.

Subject to Order 15 herein, the parent with whom the child is not otherwise living with on the child’s birthday shall spend time with that parent:

(a) From 10:00 am to 2:00 pm on a non-school day;

(b) From 3:00 pm until 6:00 pm if the child is attending school.

13.

Subject to Order 15 herein, in the event the Mother’s birthday falls in the period when the child is living with the father, the child shall spend time with the mother as follows:

(a) From 10:00 am to 6:00 pm on the Mother’s birthday on a non-school day;

(b) From 5:00 pm on the Mother’s birthday if on a school day until the commencement of school or until 9:00 am on the following day.

14.

Subject to Order 15 herein, in the event the Father’s birthday falls in the period when the child is living with the mother, the child shall spend time with the father as follows:

(a) From 10:00 am to 6:00 pm on the Father’s birthday on a non-school day; or

(b) From 5:00 pm on the Father’s birthday if on a school day until the commencement of school or until 9:00 am on the following day.

15.

In the event that either the child, the mother or the father’s birthday falls in a period in which the child would otherwise be on holidays with the other parent pursuant to the terms of these Orders, the provisions of Orders 12, 13 and 14 herein will not apply. THE COURT NOTES that the Orders which provide for the child to spend time with each of the parents on the child’s birthday and the parent’s birthdays are not intended to interfere with the other parent’s holiday time with the child as provided for in these Orders, unless agreed otherwise.

Conditions that apply to the all of the Parenting Orders herein including the child’s living arrangements and Parental Responsibility Order

16.

All parenting Orders referred to herein are subject to the following conditions:

(a) The mother being psychiatrically well.

(b) In the event the mother becomes unwell with symptoms of mental health conditions including Bi-polar or Depression or the mother is admitted to hospital, she is to forthwith inform the father.

(c) In the event the mother becomes unwell with Bi-polar symptoms or Depression or other mental health symptoms, the order for equal shared parental responsibility will be suspended and the father will have sole parental responsibility for the period of the mother’s illness.

(d) In the event the mother becomes unwell with mental health symptoms as described, the Order for the child to live equal time with the mother, holiday time with the mother or have special days with the mother as set out in these Orders, will be suspended and the child is to be forthwith delivered up to the father and remain living with the father, until the mother has evidence of her recovery and mental health wellness. If this occurs when the mother is out of (omitted) Queensland on a holiday, the father is entitled to be able to speak with the child on a daily basis, with privacy and without interference from any other person. The father is authorised to make arrangements for the return of the child to the father’s care, without delay.

(e) The mother is to provide a short report from her treating mental health professional confirming that she is well enough to resume making long term decisions about the child and spending equal time with her, at the conclusion of her period of illness.

(f) The mother attending upon a counsellor in person, to engage in Counselling regarding the dynamic of her ongoing relationship with her mother, and the mother’s desire to live and parent independently. The mother is to attend for regular periods as can be organised and afforded by the mother.

Changeovers

17.

All changeovers (other than those which are to occur to and from school as set out in these Orders) will occur at a place mutually agreed, and failing agreement at the mother’s residence with the father being responsible for collecting the child at the beginning of the father’s time with the child and the mother being responsible for collecting the child from the father’s home at the conclusion of the father’s time with the child NOTING THAT the mother is to attend to handing over the child personally (not through an agent) and she is to ensure that MS J and MR M do not attend at or near the point of handovers which occur directly between the mother and father.

Telephone/ Skype

18.

When the child is living with one parent the child shall communicate with the other parent by telephone or Skype at all reasonable times as agreed to between the parties and failing agreement as follows:

(a) Each Sunday and Wednesday between the hours of 6:30 pm and 7:00 pm. The parent with whom the child is not living with is to initiate the telephone call and the other parent is to facilitate the call.

Medical matters

19.

In the case of a medical emergency involving the child, the parent with whom the child is with at that time, is to forthwith contact the other parent.

Communication

20.

Each party shall advise the other of any changes to their residential address, landline telephone number, mobile telephone number and email address within 48 hours of any change.

21.

In the event that the mother or father travel away from (omitted) Queensland with the child for the purpose of a holiday pursuant to these Orders:

(a) the child is to have no less than two Skype or telephone calls with the other parent each week that the child is away and the travelling parent is to ensure that the child is available and has privacy for the calls;

(b) The travelling parent is to provide in writing to the other parent no later than 7 days prior to departure, the address and contact phone number of the locations where the child will stay for the holiday.

22.

These Orders act as authority for each of the mother and father only to receive advice as to the child’s schooling or medical conditions from any school or health professional.

Dispute Resolution/ Parenting Program

23.

Should any issues arise in relation to the child to which there is a dispute that the mother and father are unable to resolve, the parties are to attend dispute resolution at Relationships Australia or at some other agreed counselling service in order to resolve the issue.

24.

The mother and father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP) offered by Relationships Australia and each will provide to the other a certificate confirming his/her attendance and successful completion of such course.

Restraints

25.

The mother and her agents are restrained from:

(a) Removing the child from the enrolment at (omitted) State School, or subsequent High School at which the parents agree she attends, without an Order of the Court or the prior written agreement of the father.

(b) Enrolling the child in any other school without an Order of the Court or the prior written agreement of the father.

26.

Each of the parents are restrained from making derogatory comments regarding the other party or the other parties family directly to or within the presence or hearing of the child AND FURTHER that each of the parents are to remove the child from the presence or hearing of any person doing so.

27.

The mother and father are restrained from discussing any ongoing issue about which there is a dispute with the child or at any changeover.

Overseas travel

28.

Each of the parties and/or their agents are restrained from removing the child from the Commonwealth of Australia without an order of the Court or the prior written agreement of the other party.

Recovery Order

29.

A Recovery Order to lie in the Registry and to be uplifted in the event that the child is not returned to the father pursuant to the specific terms of these orders. The Recovery Order is to be uplifted upon the father filing an affidavit deposing to the failure of the child to be returned to him pursuant to the terms of these Orders.

30.

The Independent Children’s Lawyer is discharged.

31.

All outstanding Applications are removed from the pending cases list.

NOTATION:

A. That pursuant to section 65DA(2) 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 Attachment A and these 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

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

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