Lamport and Stokes - [2014] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMPORT & STOKES

[2014] FCCA 1689

Catchwords:
FAMILY LAW – Parenting – relocation – six year old child – mother historic and current primary carer – half siblings in New Zealand – mother wishes to return to New Zealand where she was born to reunite children.

Legislation:

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

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Orpheus & Orpheus [2014] FamCAFC 70
Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant:

MR LAMPORT

Respondent:

MS STOKES

File Number:

MLC 2210 of 2014

Judgment of:

Judge Curtain

Hearing date:

14 July 2014

Date of Last Submission:

16 July 2014

Delivered at:

Melbourne

Delivered on:

15 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Meehan

Solicitors for the Applicant:

Morrison & Sawers

Counsel for the Respondent:

In person

ORDERS

THE COURT ORDERS THAT:

All prior parenting orders, including the Watch List order and related restraints made 18 March 2014 be and are hereby discharged.
The mother and the father have equal shared parental responsibility for their child, [X] born 20 June 2008 (“[X]”).
[X] shall live with the father as detailed in order 6 below and at all other times, live with the mother.
The mother be permitted to relocate to New Zealand with [X] after the conclusion of the Victorian September/ October school term holidays and pending such relocation, she shall live with [X] in the [O], [I], [E] area or such other area to comply with order 5 below.
Pending [X] relocating to New Zealand with his mother, he shall spend time and communicate with his father:
(a)each weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday or 9.00am;
(b)for ten (10) days during the September/ October school holidays, commencing 10.00am on the day after school concludes until 6.00pm on the 10^th day; and
(c)by telephone two (2) days per week as agreed and failing agreement, each Tuesday and Thursday at 6.30pm.
After relocating to New Zealand [X] shall live with the father:
(a)all New Zealand school term holidays from 6.00pm or such other agreed time on the last school day until 6.00pm or such other agreed time, two (2) days before he returns to school;
(b)one half of the New Zealand long summer vacation, being:
(i)the first half in 2014 which shall include the Christmas eve, Christmas day and Boxing Day period and each alternate year thereafter, commencing 10.00am the first day of holidays or such other agreed time and concluding at 6.00pm or such other agreed time on the middle day of the holidays or such other days as agreed between the parents; and
(ii)the second half in 2015 and each alternate year thereafter, commencing 10.00am or such other agreed time on the middle day of the holidays and concluding at 6.00pm or such other agreed time two…

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 Lamport and Stokes

Details

AGLC: Lamport and Stokes [2014] FCCA 1689
Case: [2014] FCCA 1689
Decision Date: 15 August 2014

CaseChat Overview and Summary

In the matter of Lamport and Stokes, heard before Judge Curtain, the court considered parenting orders concerning the child [X]. The dispute involved the mother's proposed relocation to New Zealand with [X] and the subsequent arrangements for shared parental responsibility, living arrangements, and time with each parent.

The court was required to determine the extent of equal shared parental responsibility, the specific living arrangements for [X] both before and after the relocation, and the nature and frequency of time [X] would spend with each parent. Further issues included arrangements for communication between [X] and his father, financial responsibilities for travel, and provisions for overseas travel and the exchange of information regarding [X]'s education and health.

The court discharged all prior parenting orders, including a Watch List order. It established equal shared parental responsibility for [X], with a primary living arrangement with the father and time with the mother. Crucially, the mother was permitted to relocate to New Zealand with [X] after the conclusion of the Victorian school term holidays. Detailed provisions were made for [X]'s time with each parent, including during school holidays and term times, and for communication via telephone and electronic means. The court also ordered shared responsibility for airfares for [X]'s travel between Australia and New Zealand and imposed restraints on the mother regarding illicit drug use and excessive alcohol consumption when she had care of [X]. Provisions were also made for passport arrangements, future overseas travel, and the exchange of information regarding [X]'s welfare and education.

Orders

Orders of the court

THE COURT ORDERS THAT:

All prior parenting orders, including the Watch List order and related restraints made 18 March 2014 be and are hereby discharged.

The mother and the father have equal shared parental responsibility for their child, [X] born 20 June 2008 (“[X]”).

[X] shall live with the father as detailed in order 6 below and at all other times, live with the mother.

The mother be permitted to relocate to New Zealand with [X] after the conclusion of the Victorian September/ October school term holidays and pending such relocation, she shall live with [X] in the [O], [I], [E] area or such other area to comply with order 5 below.

Pending [X] relocating to New Zealand with his mother, he shall spend time and communicate with his father:

(a) each weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday or 9.00am;

(b) for ten (10) days during the September/ October school holidays, commencing 10.00am on the day after school concludes until 6.00pm on the 10th day; and

After relocating to New Zealand [X] shall live with the father:

(a) all New Zealand school term holidays from 6.00pm or such other agreed time on the last school day until 6.00pm or such other agreed time, two (2) days before he returns to school;

(b) one half of the New Zealand long summer vacation, being:

(i) the first half in 2014 which shall include the Christmas eve, Christmas day and Boxing Day period and each alternate year thereafter, commencing 10.00am the first day of holidays or such other agreed time and concluding at 6.00pm or such other agreed time on the middle day of the holidays or such other days as agreed between the parents; and

(ii) the second half in 2015 and each alternate year thereafter, commencing 10.00am or such other agreed time on the middle day of the holidays and concluding at 6.00pm or such other agreed time two (2) days before [X] is due to commence school, or such other days as agreed between the parents.

(c) upon twenty eight (28) days written notice to the mother by the father for any period of up to two (2) weeks during any school term in New Zealand subject to:

(i) it shall not occur more than three (3) occasions in any given calendar year, commencing in 2015;

(ii) [X] shall continue to attend school as and when required, save where the school Principal or such other authorised officer agrees in writing that he can miss school for part or all of that period; and

(iii) the father shall ensure [X] undertakes all relevant study and school work for that period should he be absent from school.

After relocating to New Zealand, the mother shall arrange and facilitate [X] communicating with his father as agreed between the parents and failing agreement:

(a) by telephone until the conclusion of 2014, three (3) times per week on days and times agreed, and failing agreement each Monday, Wednesday and Friday at 6.30pm New Zealand time and thereafter from 2015 Wednesday and Sunday each week at 6.30pm New Zealand time or such other agreed day or time; and

(b) by Skype, Facetime or such other electronic facility or application on at least two (2) occasions each week at days and times to be agreed between the parents commencing February 2015 (to allow the mother sufficient time to purchase an appropriate desk top or laptop computer and either an i-pad or i-telephone), and the mother shall ensure they are always in working order including being charged.

For the purpose of order 6(a) and (b) above the parents shall each pay one half of the airfares for [X] to travel from New Zealand to Australia at the start and from Australia to New Zealand at the conclusion of his periods with his father on a style and arrangement as agreed between the parents and failing agreement:

(a) the father shall book the air travel as soon as possible before each trip and no less than twenty eight (28) days beforehand;

(b) he shall send all details promptly to the mother and each shall then pay one half of the fare promptly or if the airline requires payment on booking, then the father shall pay the fare and the mother shall promptly reimburse the father one half of the cost of the airfare;

(c) where possible, [X] shall travel as an unaccompanied minor on condition the airline is properly advised and agrees to this course, and until such time as he can so travel, the mother shall travel with him to and from Australia at her expense; and

(d) the mother or her agent known to [X] shall at the start and finish deliver him to and collect him from the appropriate airfield and the father or his agent known to [X] will collect him from and deliver him to the appropriate airfield at the start and finish of his period of care.

The mother when she has care of [X] be and is hereby restrained from ingesting, consuming, possessing or using, or otherwise being under the influence of any illicit drugs, and shall not consume alcohol to excess.

10.

Within twenty eight (28) days of the date of these orders the parents do all such acts and things and sign all such documents as may be required to enable an Australian passport to issue, at the expense of the father, in the name of [X], with such passport to be retained by the parent who at any particular time has the care of [X], and it shall travel with [X] between Australia and New Zealand.

11.

In the event that either parent wishes to take any overseas trip other than to or from New Zealand with [X], that parent who wishes to travel with [X] must provide the other parent with no less than four (4) weeks written notice of the proposed dates. The non-travelling parent will consider any and all reasonable requests from the other parent in respect to any proposal from the travelling parent that [X] travel for holiday purposes and upon approval being given and a booking being made, provide to the non-travelling parent:

(a) a copy of the return flight tickets; and

(b) details of the address and telephone numbers where [X] will be staying.

12.

The parents shall:

(a) keep the other advised at all times of their respective residential addresses (subject to (f) below) and mobile telephone numbers and e-mail addresses;

(b) advise the other immediately in the event that [X] suffers any serious illness, injury or disease;

(c) authorise any medical practitioner treating [X] from time to time, to communicate with the other in respect of his medical condition and/ or health requirements;

(d) advise the other of all significant and extra-curricular activities in which [X] is involved, in a timely way to allow the other parent to be involved and permit the other to attend such activities;

(e) authorise all schools at which [X] may attend, from time to time, to:

(i) provide the other parent, at their expense, copies of all school reports, school notices and school photographs and such like in relation to [X];

(ii) allow the school officers to communicate with the other parent, either by telephone, in writing or by personal attendance, in respect to [X]’s progress and wellbeing at school; and

(iii) permit the other to attend all school functions and events which parents are normally invited to attend.

(f) not change the permanent residential address of [X] without first giving the other parent written notice twenty eight (28) clear days beforehand.

13.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. The mother has unconditionally agreed to ensure that [X] spends regular and frequent time with the father and should she not comply with these orders, a future court should consider placing [X] in the primary care of the father should he be able to ensure [X] has regular and frequent time with his mother.

B. 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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