Judd and Cotton - [2016] FCCA 2306

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUDD & COTTON

[2016] FCCA 2306

Catchwords:
FAMILY LAW – Parenting – equal time or substantial and significant time – lack of communication between parties – requirement for prescriptive orders for holidays – resumption of term time – whether change of surname for 7 year old is in her best interests.

Legislation:

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

Cases cited:
Eddington and Eddington (No.2)(2007) FLC 93–349
Ulster & Viney [2016] FAMCAFC 133

Reynolds & Sherman [2015] FamCACF 128

Chapman & Palmer (1978) FLC 90-510

Applicant:

MS JUDD

Respondent:

MR COTTON

File Number:

MLC 10344 of 2012

Judgment of:

Judge Williams

Hearing dates:

18 – 20 July 2016

Date of Last Submission:

20 July 2016

Delivered at:

Melbourne

Delivered on:

9 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms A. O’Connell

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Ms R. Wheeler

Solicitors for the Respondent:

Glenister Steinfort & Co

ORDERS

All previous parenting orders regarding the child X born (omitted) 2009 (“X”).
The parents retain equal shared parental responsibility for X.
X live with the mother.
X spend time and communicate with the father as follows:

During school terms

a)in a two week cycle:

In week 1:
i)from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9.00am if a non-school day, public holiday or pupil free day);

In week 2:
ii)from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9.00am if a non-school day, public holiday or pupil free day);

b)as otherwise agreed between the parents, in writing

During School Term Holidays

c)In 2016, for the second half of the term three school holidays, commencing at 5.00pm on the middle Saturday, and concluding at 5.00pm on the day before the resumption of school
d)in 2017 and all successive odd numbered years
i)the first half of the term two holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on the middle Saturday of the school holidays
ii)the whole of the term three school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.

e)in 2018 and all successive even numbered years
i)The whole of the term one school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.
ii)the second half of the term two holidays, commencing at 5.00pm on the middle Saturday and concluding at 5.00pm on the day before the resumption of school

During the long summer holidays

f)for one 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 Judd and Cotton

Details

AGLC: Judd and Cotton [2016] FCCA 2306
Case: [2016] FCCA 2306
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the matter of Judd and Cotton, heard before Judge Williams, the court was tasked with determining parenting orders concerning the child X. The dispute centred on the arrangements for X's living situation, time spent with each parent, and communication, particularly in light of an upcoming overseas trip for the mother.

The court was required to establish the specific terms of parental responsibility, the primary residence of X, and a detailed schedule for X's time with the father, encompassing school terms, holidays, and special occasions. Further issues included provisions for communication between X and the non-resident parent, arrangements for schooling, and protocols for international travel with X, including the exchange of passports and make-up time for the father due to the mother's overseas travel. The court also needed to address injunctions preventing discussion of proceedings with X and denigration of either parent.

The court ordered that the parents retain equal shared parental responsibility for X, with X to live with the mother. A comprehensive schedule was set out for X's time with the father, detailing specific periods during school terms, holidays, and special occasions, including provisions for alternating holiday arrangements in successive years. The orders also stipulated communication protocols, including telephone calls and electronic communication during overseas travel, and established procedures for international travel, including notice periods and passport exchange. Injunctions were imposed to prevent discussion of the proceedings with X and denigration of either parent in X's presence. The court also included particulars of obligations and consequences of contravention, as set out in an attached Fact Sheet.

Orders

Orders of the court

All previous parenting orders regarding the child X born (omitted) 2009 (“X”).

The parents retain equal shared parental responsibility for X.

X live with the mother.

X spend time and communicate with the father as follows:

During school terms

a) in a two week cycle:

In week 1:

i) from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9.00am if a non-school day, public holiday or pupil free day);

In week 2:

ii) from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9.00am if a non-school day, public holiday or pupil free day);

b) as otherwise agreed between the parents, in writing

During School Term Holidays

c) In 2016, for the second half of the term three school holidays, commencing at 5.00pm on the middle Saturday, and concluding at 5.00pm on the day before the resumption of school

d) in 2017 and all successive odd numbered years

i) the first half of the term two holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on the middle Saturday of the school holidays

ii) the whole of the term three school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.

e) in 2018 and all successive even numbered years

i) The whole of the term one school holidays, commencing at 3:30pm or the conclusion of school on the day the school term ends and concluding at 5.00pm on day before the resumption of school, subject to paragraph 24 hereof.

ii) the second half of the term two holidays, commencing at 5.00pm on the middle Saturday and concluding at 5.00pm on the day before the resumption of school

During the long summer holidays

f) for one half of the long summer holiday periods, and unless otherwise agreed in writing, on a week about basis as follows:

i) in 2016/2017 and each alternate year thereafter, the father’s time is to commence at 3:30 PM or the conclusion of school on the Friday of the week following the last week of school and continue every second week thereafter, with change over on each Friday at 3:30 PM

ii) in 2017/2018 and each alternate year thereafter. The father’s time is to commence at 3:30 PM or the conclusion of school on the Friday of the last week of school and continue every second week thereafter, with change over on each Friday at 3:30 PM

iii) should X be in the father’s care during the week she is to recommence school, the father’s time shall conclude at 3:30 PM on the day before the commencement of school

Special occasions

g) on Father’s Day from 4 PM on the Saturday prior to Father’s Day until 7 PM on Father’s Day

h) on X’s and the father’s birthday as follows:

i) if a school day from 3:30 PM or conclusion of school until 7 PM

ii) if a nonschool day from 2 PM until 7 PM, or as otherwise agreed in writing

i) at Christmas, from 3 PM Christmas Day until 3 PM Boxing Day

j) in the event Easter does not fall within school term holidays (“non holiday Easter”), as follows:

i) on the first non holiday Easter from 3:30 PM Easter Saturday until 3:30 PM on Easter Monday, and each alternate non holiday Easter thereafter

ii) on the second non-holiday Easter from 3:30 PM on Easter Friday until 3:30 PM on Easter Sunday, and each alternate non holiday Easter thereafter

k) such further or other times as may be agreed in writing

Suspension of the father’s time

In the event X is otherwise in the care of the father, her time with the father be suspended and she spend time with the mother as follows:

(a) on Mother’s Day, from 4 PM on the Saturday prior to Mother’s Day until 7 PM on Mother’s Day

(b) on X’s and the mother’s birthday as follows:

(i) if a school day from 3:30 PM or conclusion of school until 7 PM

(ii) if a nonschool day from 2 PM until 7 PM, or as otherwise agreed in writing

(d) in the event Easter does not fall within school term holidays or any period either party is travelling overseas with X (“non holiday Easter”), as follows:

(i) on the first non-holiday Easter from 3:30 PM on Easter Friday until 3:30 PM on Easter Sunday and each alternate non holiday Easter thereafter

(ii) on the second non holiday Easter from 3:30 PM Easter Saturday until 3:30 PM on Easter Monday and each alternate non holiday Easter thereafter

The fortnightly cycle referred to in paragraph 4 (a) hereof, recommence on the first Thursday of each Victorian school term, irrespective of when the child spends time with either parent during the school term or long summer holiday periods.

The conclusion and resumption of school term shall be determined in accordance with the Victorian Department of education, regardless of whether or not school attended by the child starts or finishes on those dates.

Each parent be at liberty to telephone X at all reasonable times when she is spending time with the other parent and each parent shall facilitate such calls up to 2 calls per week and in addition each parent shall facilitate any calls X requests to make to the other parent, during time she is in their care.

All nonschool change overs shall take place at (omitted) shopping centre, unless otherwise agreed in writing between the parties.

10.

Unless otherwise agreed in writing, X shall complete her primary school at her current school, (omitted) primary school.

11.

Each parent do all such acts and things and sign all documents as may be required to authorise any school which X attends to provide to the other parent copies of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and other like information, at the expense of the parent receiving same.

12.

Each parent be at liberty to provide a copy of these orders to X school

13.

Each parent keep the other informed of their current residential address and telephone contact number and 14 days prior to any proposed change, of the new details.

14.

Each parent notify the other as soon as practicable of any serious illness or injury suffered by X, whilst in their respective care and forthwith authorise the other parent to obtain all relevant information from any treating medical practitioners.

15.

Both parents are at liberty to attend all school activities and functions normally attended by parents.

16.

Each parent be and is hereby restrained from enrolling X in any extra curricular activity during the other parent’s time, without first obtaining the other parent’s consent in writing for such activity.

17.

Each parent be at liberty to enrol X in extra curricular activities during their respective time with X and forthwith upon such enrolment notify the other parent.

18.

In the event either parent enrols X in an extra curricular activity, in accordance with paragraph 17 hereof, then both parents do all acts and things to ensure that X participates in any end of term/year, concerts or special events and the parents keep each other advised of such events and both parents be at liberty to attend.

19.

Each parent make available to the other parent any medication prescribed for X, so that each parent is able to administer any such medication and the medication shall pass between the parties, so as to ensure that it is in the possession of the parent who has the care of X.

20.

The father be and is hereby restrained from taking X to his place of employment.

21.

Each parent shall advise the other, no less than 28 days prior to intended departure, if they intend to take X outside the State of Victoria and provide to the other parent an itinerary of proposed travel including accommodation and contact details.

22.

In the event either party intends to travel with X outside the Commonwealth of Australia, the travelling parent shall notify the other parent in writing , at least 60 days prior to departure, the following:

(a) the country to which X will travel and who will accompany X

(b) the airline X will travel with

(d) accommodation particulars and contact telephone numbers

23.

Upon compliance with paragraph 22 hereof, the party, who has X’s passport in his/her possession shall provide the passport to the travelling parent, no less than 14 days prior to departure and the passport shall be returned to the other parent within seven days of X’s return to Australia .

24.

In the event either parent wishes to travel internationally with X during the term one or three school holidays, as provided herein, then such holiday period shall be extended so that X shall be permitted to depart three days prior to the conclusion of the school term and return three days subsequent to the commencement of the new school term and such time to commence from the 3.30pm and conclude at 9.00am.

25.

The mother be permitted to take, the child to the (country omitted), departing on 10 October 2016 and returning on 27 October 2016 and for this purpose the child be in the mothers care from 10 AM on 9 October 2016, subject to the mother providing no less than 30 days prior to the departure date notice of the following:

(a) the airline X will travel with; and

(b) the accommodation and telephone contact numbers during the proposed holiday.

26.

In the event either party travels internationally with X, then the nontravelling parent shall communicate with X via either Skype, FaceTime, Viber, WhatsApp or Facebook Messenger, or such other electronic means as may be agreed between the parties on two occasions per week, at times to be agreed between the parties.

27.

For the purposes of X’s overseas trip in October 2016, the father be provided with make up time in accordance with either option one or option two hereof and the father notify the mother at least 30 days prior to X’s departure of his preferred option:

(a) Option 1

(i) from 3:30 PM Friday, 28 October 2016 to commencement of school on Tuesday, 1 November 2016; and

(ii) overnight on for September 2016 (Father’s Day) until the commencement of school on Monday, 5 September 2016;and

(iii) from 3:30 PM Friday 16 September until 10 AM Sunday, 18 September 2016.

(b) Option 2

(i) from 3:30 PM Friday, 11 November 2016 to commencement of school 14 November 2016; and

(ii) 3:30 PM Friday 16 September until 10 AM on 18 September 2016; and

(iii) 10 AM Saturday, 29 October 2000 9:44 AM Sunday, 30 October 2016

28.

Each parent be and is hereby restrained by injunction from:

(a) discussing these proceedings with or in the presence or hearing of X or permitting any other person to do so, and

(b) denigrating the other parent or members of the other parent’s family in the presence or hearing of X, or permitting any other person to do so.

29.

That pursuant to section 65DA (2) and Section 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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

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Ratio Decidendi

Legal Principle Established

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