Kerrison and Capps - [2018] FCCA 1008

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERRISON & CAPPS

[2018] FCCA 1008

Catchwords:
FAMILY LAW – Parenting – International Relocation – whether the mother should be permitted to relocate with the child to (country omitted) – whether the child’s relationships with the father will be maintained if the child was to move to (country omitted).

Legislation:

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

Cases cited:
Bell & Nahos [2016] FamCAFC 244
Taylor v Barker [2007] FamCA 1246
Cowley v Mendoza [2010] FamCA 597
Heath & Hemming (No.2) [2011] FamCA 749
Collu & Rinaldo [2010] FamCAFC 53
AMS v AIF [1999] HCA 26
U v U [2002] HCA 36

Applicant:

MR KERRISON

Respondent:

MS CAPPS

File Number:

MLC 9446 of 2016

Judgment of:

Judge Williams

Hearing dates:

31 January 2018, 1 – 2 February 2018,
6 February 2018 & 9 February 2018

Date of Last Submission:

9 February 2018

Delivered at:

Melbourne

Delivered on:

27 April 2018

REPRESENTATION

Counsel for the Applicant:

Ms H. Dellidis

Solicitors for the Applicant:

Pearsons Lawyers

Counsel for the Respondent:

Ms A. Carter

Solicitors for the Respondent:

Gaffney Law

ORDERS

All previous parenting orders including the Watch List order made 5 October 2016 be discharged.
The parents have equal shared parental responsibility for the child [X] born (omitted) 2015.
The child live with the mother.
The mother be at liberty to relocate the child’s residence to (country omitted) from 15 January 2021.

Father’s time in Australia pending relocation of the child’s residence

Until 15 January 2021, or upon relocation of the child’s residence to (country omitted), the child spend time with the father as follows:
From the date of these orders until September 2018, the child shall spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 3 overnight stays, and failing agreement, time shall occur as follows:
(a)From 9.30am on the first Friday until 7pm Saturday, and from 9.30am to 7pm Monday and from 12noon Wednesday to 12noon Thursday; and
(b)From 9.30am on the second Friday until 7pm Saturday and from 9.30am to 7pm Monday.
Commencing September, 2018, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 5 overnight stays, and failing agreement, time shall occur as follows:
(a)From 12noon on the first Friday until 7pm Sunday and from 9.30am to 7pm Monday and Wednesday; and
(b)From 12noon on the second Friday to 12noon Monday.
Commencing September 2019, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 7 overnight stays, and failing agreement time shall occur as follows;
(a)From 12noon on the first Friday until 4pm Tuesday; and
(b)From 12noon on the second Thursday until 4pm Sunday.
Commencing 15 January 2021 in the event the mother does not relocate the child’s residence to (country omitted), the child spend time…

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 Kerrison and Capps

Details

AGLC: Kerrison and Capps [2018] FCCA 1008
Case: [2018] FCCA 1008
Decision Date: 27 April 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Williams concerning the child [X]. The dispute involved the parents' responsibilities and the child's living arrangements, including the mother's proposed relocation of the child's residence to a specified country. Previous orders, including a Watch List order from 5 October 2016, were to be discharged.

The court was required to determine the extent of equal shared parental responsibility, the child's primary residence, and the mother's liberty to relocate the child's residence internationally. Additionally, the court needed to establish detailed arrangements for the father's time with the child both before and after any relocation, including provisions for communication and the allocation of travel costs. The court also addressed financial maintenance obligations between the parents and the exchange of specific motor vehicles.

The court ordered that the parents have equal shared parental responsibility for the child. The child was to live with the mother, who was granted liberty to relocate the child's residence to the specified country from 15 January 2021. Extensive provisions were made for the father's time with the child, detailing specific periods and overnight stays, which were to increase over time. These arrangements were to transition to a different schedule upon relocation, including significant time spent with the father in Australia during school holidays and regular communication via video calls. The orders also stipulated financial maintenance from the father to the mother, the transfer of motor vehicles, and the provision of bond monies for a lease.

Further orders addressed the child's travel arrangements, including cost-sharing for airfares and the mother's obligation to accompany the child until they could travel as an unaccompanied minor. Special provisions were made for Christmas and Father's Day, with alternating arrangements for the child to spend time with each parent. Both parents were restrained from discussing the proceedings or denigrating the other parent in the child's presence. The court also mandated the exchange of contact information, notification of illness, and provision of work rosters, and permitted both parents to attend school functions.

Orders

Orders of the court

All previous parenting orders including the Watch List order made 5 October 2016 be discharged.

The parents have equal shared parental responsibility for the child [X] born (omitted) 2015.

The child live with the mother.

The mother be at liberty to relocate the child’s residence to (country omitted) from 15 January 2021.

Father’s time in Australia pending relocation of the child’s residence

Until 15 January 2021, or upon relocation of the child’s residence to (country omitted), the child spend time with the father as follows:

From the date of these orders until September 2018, the child shall spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 3 overnight stays, and failing agreement, time shall occur as follows:

(a) From 9.30am on the first Friday until 7pm Saturday, and from 9.30am to 7pm Monday and from 12noon Wednesday to 12noon Thursday; and

(b) From 9.30am on the second Friday until 7pm Saturday and from 9.30am to 7pm Monday.

Commencing September, 2018, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 5 overnight stays, and failing agreement, time shall occur as follows:

(a) From 12noon on the first Friday until 7pm Sunday and from 9.30am to 7pm Monday and Wednesday; and

(b) From 12noon on the second Friday to 12noon Monday.

Commencing September 2019, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 7 overnight stays, and failing agreement time shall occur as follows;

(a) From 12noon on the first Friday until 4pm Tuesday; and

(b) From 12noon on the second Thursday until 4pm Sunday.

Commencing 15 January 2021 in the event the mother does not relocate the child’s residence to (country omitted), the child spend time with the father as follows:

(a) In each two week period the father is in Melbourne at such times are agreed, with time during school terms to include eight overnight stays, and failing agreement time shall occur as follows:

(i) the from the conclusion of school on the first Friday to the commencement of school Tuesday; and

(ii) from the conclusion of school on the second Thursday to the commencement of school Monday;

(iii) For one half of each school holiday period (including the long summer holiday). At times agreed, when the father is in Melbourne.

(b) when the father is not in Melbourne, a child and father shall communicate by telephone and/or Skype or FaceTime, each Monday, Wednesday and Friday, for not less than 15 minutes, with the father to SMS the mother the day before to confirm his availability and to nominate a time for the contact, to be between 4 PM to 7:30 PM Melbourne time, or as otherwise agreed.

Father’s time with the child subsequent to relocation of her residence to (country omitted)

10.

In the event the mother relocates the child’s residence to (country omitted) in January 2021 or such later time as the child’s residence is relocated to (country omitted) the child spend time with the father as follows:

(a) In Australia, for 9 nights/10 days in the first and third term (country omitted) school term holiday periods, and for two weeks (14 nights) of the long summer holiday period, at times agreed (and each alternate year, the child's time with the father for the long summer holiday period shall include Christmas Day)

(b) In (country omitted), for up to 4 occasions each year, for up to two weeks in each visit, and such time to include one week of the second term (country omitted) school holiday period.

11.

The child shall communicate with the father by telephone and/or Skype or FaceTime, each alternate day, for not less than 15 minutes, with the father to SMS the mother the day before to confirm his availability and to nominate a the time for the contact, to be between 4pm to 7.30pm (country omitted) time, or as is otherwise agreed.

12.

The child shall spend time with the father at such other or further times as is agreed between the mother and father in writing including via SMS or email.

13.

For the purposes of time in Australia:

(a) Unless otherwise agreed, the mother shall accompany the child to and from Australia until the child is able to travel as an unaccompanied minor

(b) The father shall meet the costs of the child's airfares until the mother obtains full-time employment or the or until 2022, whichever occurs earlier, and otherwise the parents shall share equally in such cost;

(c) The parties shall share equally the costs of the mother's airfares until the mother obtains full time employment or until 2022, whichever occurs earlier, and otherwise the mother shall meet the whole of the costs of her airfares.

14.

For the purposes of time in (country omitted):

(a) The father shall meet the costs of his airfares and accommodation;

15.

The mother shall ensure the father has the use of a motor vehicle fitted with an age appropriate child restraint for the duration of his visit.

Maintenance

16.

The father shall provide the mother $400 per week maintenance for her support whilst she is living in Australia and such maintenance shall cease upon the earliest of the following events:

(a) her gaining full time employment

(b) her becoming eligible to receive sole parent payments or Newstart payments from Centrelink,

(d) the year 2022

17.

In the event the mother wishes the child to attend child care, the parties shall do all things necessary to put the father in the positon of claiming the child care subsidy and the father shall equally share the cost of any out of pocket child care expenses and such payments shall not be credited against any child support assessment.

18.

Within 21 days the father do all things necessary to transfer to the mother at his expense the KIA (omitted) motor vehicle together with keys, and contemporaneously with the provision of the KIA, the mother shall return the Toyota (omitted) motor vehicle to the father together with the key.

19.

Upon the mother obtaining a lease, the father shall forthwith provide the whole of the bond monies to the estate agent such bond to be fully refunded to the father. In the event the lease ends and with the mother to refund the father any bond monies retained by the landlord.

Travel to (country omitted)

20.

The mother be permitted to travel with the child to (country omitted) at any time the father is not spending time with the child pursuant to these orders.

21.

For the purposes of such travel:

(a) The mother shall meet the costs of her own airfares;

(b) The father shall meet the child's airfares for two trips per annum, with such payment not to be credited against any child support assessment;

(c) The mother shall provide the father not less than 21 days' notice in writing of her dates for travel, wherever practicable.

Special occasions

22.

For the purposes of Christmas, the child shall spend time as follows:

(a) With the mother from 22 December, to 12 January in 2018/2019 and each alternate year thereafter; and

(b) With the father in 2019/2020 and each alternate year thereafter from 10am 24 December until 7pm 29 December and a further block of 5 nights in January upon 28 day's written notice to the mother

23.

For the purposes of Mothers' day, the child shall spend time with the mother from 5pm the Saturday immediately preceding Mothers' Day to 9.30am or the commencement of school Monday.

24.

Provided the father and the child are both in Melbourne or (country omitted), for the purposes of Fathers' Day the child shall spend time with the father from 5pm the Saturday immediately preceding Fathers' Day to 9.30am or the commencement of school Monday.

Restraints on the parents

25.

Both parents be and are hereby restrained from:

(a) Discussing these proceedings with or in the presence or hearing of the child or allowing any other person to do so;

(b) Denigrating the other parent or member of the parent's family or household to or in the presence or hearing of the child or allowing any other person to do so;

Parents to provide information

26.

Each parent forthwith advise the other in the event of any change to their contact telephone number and email address and shall provide 28 days' written notice of any proposed change of address .

27.

Each parent forthwith inform and keep the other informed of any illness, injury or accident suffered by the child requiring medical treatment, and provide the other parent with the details of the child's treatment and medical treater and authorise such medical professional to communicate with the other parent.

28.

The father provide to the mother a copy of his work roster forthwith upon receipt of same from his employer.

School Issues

29.

Both parents are at liberty to attend all daycare, kinder, pre-school and school functions to which parents are routinely invited.

30.

The mother shall authorize and request the child's day care, kinder, pre-school and school to provide the father with copies of the children's school reports, newsletters, photo-order forms and the like to the father, at his expense, if any.

AND THE COURT NOTES THAT:

A. Subsequent to relocation, the mother shall use her best endeavours to provide accommodation for the father and child when he visits (country omitted), with one of her friends or family members.

B. Subsequent to relocation, the mother shall use her best endeavours to register these Orders in a Court in (country omitted), with competent jurisdiction.

C. Pursuant to ss.65DA(2) and 62B 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 Annexure 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

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Ratio Decidendi

Legal Principle Established

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