Kershaw and Joyce - [2013] FCCA 1047

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERSHAW & JOYCE

[2013] FCCA 1047

Catchwords:
FAMILY LAW – Parenting – Relocation – Competing interests of meaningful relationship of child with father and the impact of relocation on mother’s parenting capacity and the child’s stability.

Legislation:

Family Law Act 1975 s.60CC

Hepburn & Noble (2010) FamCAFC 111
A & A: Re-location Approach (2000) FLC 93-035
Taylor & Barker [2007] FamCA 1246
Morgan & Miles (2007) FLC 93-343
AIMS v AIF (1999) CLR 160
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
MRR & GR [2010] HCA 4
Cales & Cales [2010] FamCAFC 237

Applicant:

MR KERSHAW

Respondent:

MS JOYCE

File Number:

PAC 3151 of 2012

Judgment of:

Judge Henderson

Hearing dates:

18 and 19 June 2013

Date of Last Submission:

19 June 2013

Delivered at:

Parramatta

Delivered on:

9 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Weaver

Solicitors for the Applicant:

John Spence & Associates

Counsel for the Respondent:

Mr Anglin

Solicitors for the Respondent:

ORDERS

That the child, X, born (omitted) 2009, live with her mother and the mother be permitted to remain living with the child in Queensland.
The child spend time with her father failing the parties being able to agree as follows:
(a)One weekend each month, with the mother to facilitate and pay for the costs of the child attending Sydney for three nights and three days in one calendar month and the father to facilitate and pay for the costs of the child spending time with him in Brisbane for three nights and three days in the other calendar month.
(b)The time for the child to commence spending time with her father will be in Sydney the first weekend after 28 days has expired from the date of these orders.
(c)The child to spend one week holiday with her father in each of the gazetted Queensland school holiday periods mid-term at the cost of the mother.
(d)For one week in Christmas each year at the cost of the father and in even-numbered years, the week holiday to include Christmas Day and Boxing Day.
(e)In odd-numbered years the week of holiday to commence the second week in January.
(f)Upon the child reaching age 7, the child to spend two weeks with her father in Sydney at Christmas and travel may travel as an unaccompanied minor.
(g)At all other times as agreed.
The parents to communicate in relation to the child via Skype or text message, and the child to have Skype communication with the father on no less than two occasions each week, and at other times as she may request.
Both parties are injuncted and restrained from speaking ill of or denigrating the other in the presence or hearing of the child or permitting and third person so to do.

IT IS NOTED that publication of this judgment under the pseudonym Kershaw & Joyce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

PAC…

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 Kershaw and Joyce

Details

AGLC: KERSHAW & JOYCE [2013] FCCA 1047
Case: [2013] FCCA 1047
Decision Date: 9 August 2013

CaseChat Overview and Summary

In the matter of Kershaw and Joyce, heard by Judge Henderson, the dispute concerned parenting orders for a child, X, born in 2009. The orders sought to establish where the child would live and the arrangements for the child to spend time with each parent.

The court was required to determine the living arrangements for the child, X, and to make orders regarding the time X would spend with her father, including the frequency, duration, location, and cost of such time. Further issues included the method and frequency of communication between the parents regarding X, and the communication between X and her father. The court also considered the need to prevent disparaging remarks about one parent in the presence of the child.

Judge Henderson ordered that X live with her mother, who was permitted to remain living with X in Queensland. The court then detailed specific arrangements for X to spend time with her father, alternating between Sydney and Brisbane on a monthly basis, with provisions for school holidays and Christmas. The orders also mandated regular Skype or text communication between the parents and between X and her father, and importantly, enjoined both parents from speaking ill of the other in X's presence or hearing.

Orders

Orders of the court

That the child, X, born (omitted) 2009, live with her mother and the mother be permitted to remain living with the child in Queensland.

The child spend time with her father failing the parties being able to agree as follows:

(a) One weekend each month, with the mother to facilitate and pay for the costs of the child attending Sydney for three nights and three days in one calendar month and the father to facilitate and pay for the costs of the child spending time with him in Brisbane for three nights and three days in the other calendar month.

(b) The time for the child to commence spending time with her father will be in Sydney the first weekend after 28 days has expired from the date of these orders.

(c) The child to spend one week holiday with her father in each of the gazetted Queensland school holiday periods mid-term at the cost of the mother.

(d) For one week in Christmas each year at the cost of the father and in even-numbered years, the week holiday to include Christmas Day and Boxing Day.

(e) In odd-numbered years the week of holiday to commence the second week in January.

(f) Upon the child reaching age 7, the child to spend two weeks with her father in Sydney at Christmas and travel may travel as an unaccompanied minor.

(g) At all other times as agreed.

The parents to communicate in relation to the child via Skype or text message, and the child to have Skype communication with the father on no less than two occasions each week, and at other times as she may request.

Both parties are injuncted and restrained from speaking ill of or denigrating the other in the presence or hearing of the child or permitting and third person so to do.

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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