Kane and Anor and Pallan - [2016] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANE & ANOR & PALLAN

[2016] FCCA 115

Catchwords:
FAMILY LAW – Parenting – joint application by maternal grandmother and mother – mother subsequent to application being filed fails to engage in the proceedings – contest as between maternal grandmother and father – consideration of psychological assessment of the father and family report prepared – application of such evidence to the facts available in relation to the proceedings and determination in all the circumstances of what reflects the best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Heath & Hemming (No 2) [2011] FamCA 749
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439

MRR v GR (2010) 240 CLR 461

First Applicant:

MS KANE

Second Applicant:

MS SALMON

Respondent:

MR PALLAN

File Number:

TVC 615 of 2014

Judgment of:

Judge Coker

Hearing date:

12 October 2015

Date of Last Submission:

12 October 2015

Delivered at:

Townsville

Delivered on:

9 March 2016

REPRESENTATION

Counsel for the First Applicant:

Mr Pack

Solicitors for the First Applicant:

Harrington Legal

Second Applicant:

No appearance

Respondent:

In person

Solicitors for the Independent Children’s Lawyer:

Greg Pohlmann Family Lawyers

ORDERS

That the Maternal Grandmother have sole parental responsibility for the major long term care, welfare and development of the children, X born (omitted) 2009 and Y born (omitted) 2011.
In exercising sole parental responsibility the Maternal Grandmother shall, except in emergency:-
(a)Inform the Mother and the Father of any decision that needs to be made as early as practicable;
(b)If the Mother and or the Father have a view as to what the decision should be, that parent shall forthwith communicate this view to the Maternal Grandmother;
(c)The Maternal Grandmother will consider any view expressed by the parents;
(d)As soon as possible after the decision, the Maternal Grandmother will notify the parents of the decision.
That notwithstanding Order 1 and 2 herein:
(a)The Mother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her;
(b)The Father, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with him; and
(c)The Maternal Grandmother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her.
That the children live with the Maternal Grandmother.
That the children spend time with and communicate with the Mother as may be agreed from time to time with the Maternal Grandmother and failing agreement as may be otherwise ordered by a Court of competent jurisdiction.
That the children spend time with and communicate with the Father as may be agreed from…

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: [2016] FCCA 115
Decision Date: 9 March 2016

CaseChat Overview and Summary

In the matter of Kane and Anor and Pallan, heard before Judge Coker, the dispute concerned the parental responsibility and living arrangements for two children, X and Y. The orders made by the court addressed the complex arrangements for the children's care, welfare, and development, involving the maternal grandmother, the mother, and the father.

The court was required to determine the appropriate allocation of sole parental responsibility for the major long-term decisions concerning the children's care, welfare, and development. Additionally, the court needed to establish the day-to-day care arrangements for the children, including specific provisions for time spent with each parent and the maternal grandmother, as well as communication protocols and dispute resolution mechanisms.

The court ordered that the maternal grandmother have sole parental responsibility for the major long-term decisions regarding the children's care, welfare, and development. While the parents were to be informed of any such decisions and their views considered, the ultimate decision-making power rested with the maternal grandmother. The children were ordered to live with the maternal grandmother, who was also responsible for their day-to-day care when they were with her. The mother and father were also responsible for the children's day-to-day care when the children were living with or spending time with them, respectively. The orders detailed specific, phased arrangements for the children to spend time with the father, contingent on his engagement with professional support services, and included provisions for communication, special days, and school holidays. The court also established a dispute resolution process involving family dispute resolution practitioners and prohibited the consumption of illicit substances by any responsible adult when the children were in their care.

Orders

Orders of the court

That the Maternal Grandmother have sole parental responsibility for the major long term care, welfare and development of the children, X born (omitted) 2009 and Y born (omitted) 2011.

In exercising sole parental responsibility the Maternal Grandmother shall, except in emergency:-

(a) Inform the Mother and the Father of any decision that needs to be made as early as practicable;

(b) If the Mother and or the Father have a view as to what the decision should be, that parent shall forthwith communicate this view to the Maternal Grandmother;

(d) As soon as possible after the decision, the Maternal Grandmother will notify the parents of the decision.

That notwithstanding Order 1 and 2 herein:

(a) The Mother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her;

(b) The Father, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with him; and

(c) The Maternal Grandmother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her.

That the children live with the Maternal Grandmother.

That the children spend time with and communicate with the Mother as may be agreed from time to time with the Maternal Grandmother and failing agreement as may be otherwise ordered by a Court of competent jurisdiction.

That the children spend time with and communicate with the Father as may be agreed from time to time with the Maternal Grandmother and failing agreement as follows:

(a) For a period of up to three hours each consecutive Sunday between the hours of 1.00pm and 4.00pm for a period of eight weeks from the date of these Orders and upon the conclusion of 8 consecutive weeks; then

(b) For a period of up to six hours each alternate Saturday between 12 noon and 6.00pm for a period of sixteen (16) weeks and upon the conclusion of 8 consecutive fortnightly attendances; then

(c) Upon providing to the Maternal Grandmother confirmation that the Father has engaged with and secured the support of Relationships Australia in Bowen or an allied professional Family Support organisation with regard to his interactions with the children, overnight time with the children may proceed as follows:

(i) From 10.00am Saturday to 4.00pm Sunday each alternate weekend for a period of twelve (12) weeks, and upon the conclusion of 6 consecutive fortnightly attendances; then thereafter

(ii) Each alternate weekend from 4.00pm Friday to 4.00pm Sunday or Monday should the Monday be a public holiday or pupil free day.

That from the end of Term 3 gazetted school holidays 2016, provided the Father has fully complied with Orders 6(a) and (b), that the children spend time with the Father for one half of all gazetted school holiday vacation periods, being the first half in even numbered years and the second half in odd numbered years.

That from the end of the Term 3 gazetted school holidays, provided the Father has fully complied with Orders 6(a) and (b), the time with the Father pursuant to Orders (6)(c) is suspended during all gazetted school vacation periods.

That the Father’s time with the children pursuant to Orders 6(a) and (b) shall be confined to the (omitted)/(omitted) districts only.

10.

That the Father advise the Maternal Grandmother at least 24 hours in advance if he is unable to spend time with the children;

11.

That changeovers pursuant to Orders 6(a), (b) and 14 shall occur at the Maternal Grandmother’s residence and changeovers in relation to Order 6(c) and 7 shall occur at the Traffic Rest Area at (omitted).

12.

That the children spend time with the Father when he would not otherwise have the children in his care on special days, and if not otherwise agreed, then on the Father’s and children’s birthdays, if a school day, from the conclusion of school until 7.00pm or from 10.00am until 3.00pm, if a non-school day.

13.

That the children spend time with the Maternal Grandmother and the Mother on their birthdays should the children be otherwise in the care of the Father, from 10.00am until 5.00pm.

14.

That the children spend time with the Father on Father’s Day from 9.00am to 6.30pm.

15.

That the children spend time with the Maternal Grandmother or with the Mother as may be agreed on Mother’s Day from 9.00am to 6.30pm.

16.

Commencing 2016/2017 Christmas School vacations period during the Christmas Day/ Boxing Day period, the parent/Maternal Grandmother who has the children living with him or her during the second half of that vacation period shall also spend time with the children from 11.00am Christmas Day until 3.00pm Boxing Day.

17.

Subject to the Father complying with Orders 6(a) and (b), the children shall spend time with the Father from 11.00am Easter Sunday to 4.00pm Easter Monday in even numbered years and from 11.00am Easter Friday to 11.00am Easter Sunday in odd numbered years commencing in 2017.

18.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;

(d) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(e) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(f) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

19.

That the Father may communicate by telephone with the children unless otherwise agreed in writing, each Sunday and Wednesday between the hours of 6.00pm and 6.30pm with the Father to initiate the telephone call and the Maternal Grandmother to ensure the children are available to take the call in a quiet and private location.

20.

That the parents and the Maternal Grandmother shall:-

(a) Keep each other informed at all times of their residential address and landline and mobile contact telephone number with written notification of any changes to be made within five days of any such change;

(b) Keep the other parent informed of the names and address of any treating medical or other health practitioner who treat the child and authorise the practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the Father, Mother and the Maternal Grandmother.

21.

That the Maternal Grandmother authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children at the parent’s expense.

22.

That the parents are to ensure that the children attend all school activities and extra-curricular activity in which the children are enrolled or participate including any lessons, practice sessions or games when the children are in their care.

23.

That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:

(a) The Maternal Grandmother and the parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;

(b) They shall pay the costs of the Family dispute resolution Practitioner equally;

(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Maternal Grandmother shall nominate which practitioner shall be consulted and advise in writing details of that practitioner, their fees, and availability to the Mother and Father.

24.

None of the responsible adults, namely the Maternal Grandmother, Father or the Mother shall consume or indulge in illicit substances when the children are in their respective care.

25.

The Father is hereby authorised to produce to Relationships Australia (or alternative service provider), the Report of Mr C filed on the 27 January 2015 to enable his compliance with Order 6(c).

26.

That the Independent Children’s Lawyer be 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

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