Landis and Landis - [2013] FCCA 2413

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANDIS & LANDIS

[2013] FCCA 2413

Catchwords:
FAMILY LAW – Children – Parenting Orders – final orders – parental responsibility – equal shared parental responsibility – residence – spending time with parents – best interests of the child – child aged 4 years – child’s mother originally from (country omitted) – consideration of child’s right to enjoy her (country omitted) culture – Watch List – Family Law Watch List – immunisation – whether child should undergo traditional immunisation – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 67U, 68L

Cases cited:
Kingsford & Kingsford [2012] FamCA 889
Landis & Landis [2010] FMCAfam 1283
Landis & Landis [2011] FMCAfam 490
Landis & Landis [2012] FMCAfam 1452
Landis & Landis [2013] FMCAfam 213

Applicant:

MS LANDIS

Respondent:

MR LANDIS

File Number:

SYC 4810 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

6-8 March, 30-31 July, 1 August 2013

Date of Last Submission:

1August 2013

Delivered at:

Sydney

Delivered on:

17 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Graves

Solicitors for the Applicant:

David H. Cohen & Co

The Respondent:

In person

Counsel for the Independent Children's Lawyer:	Mr Sperling
Independent Children's Lawyer:	Brian Samuel

ORDERS

All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2009.
The child X is to live with the Father.
From the date of these Orders until 31 December 2014 the child X will spend time with the Mother:
(a)From 8:30am on Monday until 8:30am on Wednesday in each week; and
(b)From 8:30am until 5:30pm each Friday.
From 1 January 2014 until 31 December 2014 the child X is to spend time with the Mother:
(a)From 8:30am on Friday until 5:30pm on Sunday each alternate week;
(b)From 8:30am until 5:30pm each other Friday in the fortnight; and
(c)From 8:30am on Tuesday until 8:30am on Wednesday each week.
From 1 January 2015 until the child X commences school at the beginning of the first school term in January 2015 the child X is to spend time with the Mother:
(a)From 3:00pm on Friday until 9:00am on Monday each alternate weekend; and
(b)From 3:00pm on Tuesday until 9:00am on Wednesday in each week.
From the commencement of the school term in January 2015 and during each school term thereafter the child X is to live with the Mother:
(a)From immediately after school on Friday (or from 3:00pm if the child is not required to attend school on that day) until the commencement of school on Monday (or 9:00am if the child is not required to attend school on that day) each alternate weekend;
(b)From immediately after school on Tuesday until the commencement of school on Wednesday each week.
The times that the child spends or lives with each parent during the school terms are suspended and are to resume in the same sequence…

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 Landis and Landis

Details

AGLC: Landis and Landis [2013] FCCA 2413
Case: [2013] FCCA 2413
Decision Date: 17 December 2013

CaseChat Overview and Summary

This matter concerned parenting orders for the child X, born in 2009, between the Applicant Mother and the Respondent Father. The court was required to determine the arrangements for the child's residence, time spent with each parent, and various other aspects of their shared responsibility.

The court was tasked with determining the specific terms of equal shared parental responsibility, including the child's living arrangements, the schedule for time spent with each parent during school terms and holidays, and provisions for special occasions such as birthdays and Mother's and Father's Days. Further issues included arrangements for the child's education, healthcare, and communication between the parents. The court also considered orders to prevent the child's removal from Australia and the discharge of previous orders.

The court discharged all earlier parenting orders and established new arrangements for equal shared parental responsibility. The child X was ordered to live with the Father, with detailed schedules outlining the time the child would spend with the Mother, progressively transitioning to a different living arrangement from January 2015. The orders also stipulated specific arrangements for school holidays, including a method for calculating half-holiday periods. Provisions were made for parental communication, the child's education and healthcare, including immunisations, and restrictions on criticism of each other. Crucially, the court ordered that the child's name be placed on the Family Law Watch List for two years to prevent her removal from Australia, with specific notice requirements for any future international travel. The parents were also directed to attend counselling and mediation for any unresolved parenting matters.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the marriage X born (omitted) 2009.

The child X is to live with the Father.

From the date of these Orders until 31 December 2014 the child X will spend time with the Mother:

(a) From 8:30am on Monday until 8:30am on Wednesday in each week; and

(b) From 8:30am until 5:30pm each Friday.

From 1 January 2014 until 31 December 2014 the child X is to spend time with the Mother:

(a) From 8:30am on Friday until 5:30pm on Sunday each alternate week;

(b) From 8:30am until 5:30pm each other Friday in the fortnight; and

From 1 January 2015 until the child X commences school at the beginning of the first school term in January 2015 the child X is to spend time with the Mother:

(a) From 3:00pm on Friday until 9:00am on Monday each alternate weekend; and

(b) From 3:00pm on Tuesday until 9:00am on Wednesday in each week.

From the commencement of the school term in January 2015 and during each school term thereafter the child X is to live with the Mother:

(a) From immediately after school on Friday (or from 3:00pm if the child is not required to attend school on that day) until the commencement of school on Monday (or 9:00am if the child is not required to attend school on that day) each alternate weekend;

(b) From immediately after school on Tuesday until the commencement of school on Wednesday each week.

The times that the child spends or lives with each parent during the school terms are suspended and are to resume in the same sequence at the commencement of the following term.

Commencing at the end of the first school term in 2015 and for each of the Autumn, Winter and Spring school holidays thereafter for one half of each of those school holidays.

10.

For the purposes of the Christmas/January school holiday period commencing at the end of the fourth school term in December 2015 the child will spend time or live with each parent as the case may be as follows:

(a) For the first week of the school holidays commencing on Friday 18 December 2015 with the Mother;

(b) For the second week commencing at 4:00pm on Christmas Day 2015 with the Father;

(d) For the fourth week commencing at 4:00pm on 8 January 2016 with the Father;

(e) For the fifth week commencing at 4:00pm on 15 January 2016 with the Mother; and

(f) Thereafter with the father commencing at 4:00pm on 22 January 2016 until the commencement of school at the beginning of the first school term.

11.

For the purposes of the Christmas/January school holiday period commencing at the end of the fourth school term in December 2016 and each Christmas/January school holiday period thereafter the child X is to spend time with the Mother for half of the school holidays as the parties agree PROVIDED THAT:

(a) If there is no agreement between the parties then the child X will spend time with the Mother for the first half of the Christmas/January school holidays in December 2016 and January 2017 and each alternate year thereafter and for the second half of the Christmas/January school holidays in December 2017 and January 2018 and each alternate year thereafter; and

(b) When the child X is to be with one parent during the first half of the Christmas/January school holiday period then she is to be with the other parent from 2:00pm on Christmas Day until 5:30pm on Boxing Day.

12.

For the purposes of calculating the halfway point in any school holiday period, the holidays shall be taken to commence immediately after school on the afternoon of the last day that the child is required to attend school at the end of the term and 6:00pm on the evening immediately before the first day that the child is required to attend school at the commencement of the following term and the time is to be calculated by the number of nights that the child spends with each parent.

13.

For the purpose of changeovers between the parents the parents will collect the child X and return her to the other parent:

(a) From pre-school or school at the commencement of the time that the child is to spend or live with them and to the pre-school or school at the end of the time;

(b) Where the child X is not at pre-school or school at the commencement or conclusion of the time then changeovers will take place at the (omitted) Shopping Centre; and

14.

In the event that Mother’s Day occurs during any period when the child X is otherwise living with the Father in accordance with these Orders then the child will spend time with the Mother:

(a) From 9:30am until 5:30pm in 2014; and

(b) From 2015 onwards, on the weekend on which Mother’s Day falls from immediately after school on the Friday before Mother’s Day until the commencement of school on the following Monday.

15.

In the event that Father’s Day occurs during any period when the child X is otherwise with spending time with the father in accordance with these Orders then the child will spend time with the father:

(a) From 9:30am until 5:30pm in 2014; and

(b) From 2015 onwards, on the weekend on which Father’s Day falls from immediately after school on the Friday before Father’s Day until the commencement of school on the following Monday.

16.

If the child’s birthday falls on a day when the child is in the care of the father in accordance with these Orders then the child is to spend time with the Mother for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or from 3:00pm if the day is not a school day until 7:00pm.

17.

If the child’s birthday falls on a day when the child is in the care of the mother in accordance with these Orders then the child is to spend time with the Father for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or from 3:00pm if the day is not a school day until 7:00pm.

18.

If the Mother’s birthday falls on a day when the child is in the care of the Father in accordance with these Orders then the child is to spend time with the Mother for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or 3:00pm if the day is not a school day until 7:00pm.

19.

If the Father’s birthday falls on a day when the child is in the care of the Mother in accordance with these Orders then the child is to spend time with the Father for a period of four (4) hours as agreed between the parents but if there is no agreement from immediately after school or 3:00pm if the day is not a school day until 7:00pm.

20.

The Mother is to spend time with the child on days that are of special significance to (country omitted) people at such times as the parties shall agree but if there is no agreement from 12 noon until 6:00pm.

21.

Unless the Mother and Father consent in writing or unless otherwise ordered by the Court:

(a) The child X is to attend a day care centre for the balance of 2013 as nominated by the Father;

(b) In 2014 the child X is to attend (omitted) Pre-School at (omitted) on days when she is living with the father PROVIDED THAT in the event that she is unable to attend (omitted) Pre-School in 2014 then the child will attend the (omitted) Day Care Centre on days when she is living with the Father;

(c) Commencing in 2015 the child X is to attend (omitted) Public School PROVIDED THAT in the event that she is unable to attend school at the commencement of the first school term in 2015 the child is to be enrolled in and thereafter attend the local public school closest to the residential address of the Father.

22.

When the child X reaches Year 5 at school the Mother and Father are to consult with each other in writing as to their proposals for high school for X and in the event that there is no agreement between the parties about the high school the child is to attend by the end of Term Three in Year 5 then the Mother and Father must do all such things necessary to arrange to attend on a Family Relationships Centre to attempt to resolve this issue prior to commencing any Court proceedings under the Family Law Act 1975.

23.

Both the Mother and the Father are to authorise any school, pre-school or day care centre that the child X may attend to provide to both the Mother and the Father:

(a) Copies of all of the child’s school reports;

(b) Copies of all newsletters and announcements of all school or pre-school or day care activities or other material pertaining to the child’s education; and

(c) In the event that X should bring home from school with her during any period when she is in the care of either parent, that parent must provide a copy of the note from the school to the other parent within two (2) days of receipt by that parent (which may include forwarding such material by email), together with written information about what that parent being the parent in whose care the child is has done relating to the note, if anything, AND if the material pertaining to X’s education is not available in writing then the parent who has the material must within two (2) days provide written particulars of the relevant reports or activities to the other parent.

24.

Both the Mother and the Father are to authorise the staff members at any school, pre-school or day care centre that the child X may attend to discuss the child’s progress with the other parent AND these Orders are deemed to be the Father’s and the Mother’s authorisations to any school, pre-school or day care centre to discuss the child’s progress with the other parent.

25.

Both the Mother and the Father may attend events to which parents are normally invited to attend such as special days, prize days, school sports carnivals, parent teacher interviews and all extra-curricular activities in which the child may participate.

26.

Both the Father and the mother may provide a copy of these Orders to the school, pre-school or day care centre that the child X attends.

THE COURT NOTES THAT:

(a) The child X currently attends the Family Day Care of Mr T and it is the intention of the Father that the child will continue to attend this day care centre until the end of 2013.

(b) (omitted) Public School is an out of area public school from both the Father’s and the Mother’s residential addresses.

27.

Each parent must advise the other as soon as practicable and in any event within two (2) hours if, whilst the child X is in their care in accordance with these Orders, the child is hospitalised or receives medical attention for serious illness or injury and provide the other parent with details including details of the illness, injury, treating doctor or hospital and the child’s treatment and prognosis.

28.

Each parent must ensure that the other is kept informed as soon as is reasonably practicable of:

(a) Any medical problems or illness suffered by X while in their care; and

(b) Any medication that has been prescribed for the child or any over the counter medication given to the child.

29.

The Mother and Father are to consult in relation to the child’s attendance on any specialist, including any specialist medical practitioner, dentist, orthodontist, speech therapist, ophthalmologist, occupational therapist or other therapist PROVIDED THAT:

(a) In the event that the child X is referred to such specialist the parent who made the referral must inform the other parent in writing within 24 hours of such referral being made;

(b) The parent who makes the initial appointment must within 24 hours after the initial appointment is made and prior to the appointment taking place advise the other parent and authorise the specialist to discuss any matters with the other parent;

(c) The parent who obtains the referral must do all acts and things necessary to ensure that the other parent is provided with copies of any test results, letters and referrals that he or she has received from and by any specialist within 24 hours of receipt of that material; and

(d) Each parent is permitted to attend upon the child’s appointments, such attendance or attendances to be at the sole discretion of the specialist concerned and that attendance may be either in person or by telephone.

30.

Within twelve (12) months of the date of these Orders the mother is to do all such acts and things as may be necessary to ensure that the child X receives child vaccinations or inoculations for the following:

(a) Diphtheria;

(b) Tetanus;

(d) Measles mumps rubella;

(e) Varicella known as chickenpox;

(f) Rotavirus; and

(g) Pneumococcal conjugate

in accordance with the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.

31.

Prior to any overseas travel undertaken by the child X the Mother is to ensure that the child is fully immunised against poliomyelitis.

32.

For the purposes of the vaccinations and inoculations referred to in the preceding Orders the mother:

(a) Must ensure that the vaccinations or inoculations are administered to the child X by a medical practitioner who is not a member of or associated with the Father’s (business omitted); AND

(b) No later than 48 hours after each vaccination or inoculation inform the Father in writing of:

(i) The date of administration of the vaccination or inoculation;

(ii) The name of the medical practitioner who administered the vaccination or inoculation;

(iii) The particular vaccination or inoculation administered; and

(iv) Provide a copy of a medical certificate or letter from the medical practitioner certifying the administration of the vaccination or inoculation.

33.

Once the child’s level of vaccinations or inoculations has been brought up to date as provided by these Orders, the mother is to do all acts and things necessary to ensure that the child X continues to receive all such vaccinations and inoculations as are recommended within the National Immunisation Program or its successor for a child of her age INCLUDING the Human Papillomavirus vaccine (Gardasil) or like treatment for the prevention of cervical cancer.

34.

Both the Mother and Father are to keep the other informed of their residential addresses, landline telephone number (if any) and other contact details including mobile telephone number and an email contact address.

35.

Otherwise than as provided by these Orders for the purposes of the parents communicating with each other about the child X they are to communicate:

(a) By email in the case of non-urgent matters; and

(b) By telephone or text message if it is an urgent matter or a matter requiring an immediate response.

36.

The Mother and the Father are each restrained from physically punishing or chastising the child X.

37.

The Mother and Father are each restrained from criticising or abusing or speaking badly of the other parent or any member of the other’s family in the presence or hearing of the child or from permitting any third party to do so.

38.

Order 11 made on 23 November 2010 directed to the Australian Federal Police placing the name of the child X born (omitted) 2009 on the Airport Watch List otherwise known as the PACE Alert System is discharged.

39.

Each of the mother MS LANDIS born (omitted) 1983 and the Father MR LANDIS born (omitted) 1958 and their servants and agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X (a female) born (omitted) 2009 from the Commonwealth of Australia.

40.

It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the child X (a female) born (omitted) 2009 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for a period of two (2) years from the date of this Order or until further Order of the Court.

41.

Upon the expiration of the period of two (2) years referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction the Australian Federal Police are to cause the removal of the name of the child X from the Family Law Watch List.

42.

After the expiration of the period of two (2) years referred to in the immediately preceding Orders each of the mother and the father is entitled to remove the child X from Australia to travel internationally during any period when the child is with them PROVIDED THAT the parent wishing to travel with the child gives the other parent at least four (4) weeks’ prior written notice of the intended travel out of Australia specifying:

(a) The dates and times of departure and return;

(b) The means of transport and all details including details of the airline or shipping company with whom the child will be travelling;

(d) Contact numbers and addresses for the child for the duration of the period when the child will be out of Australia; and

(e) Flight numbers and times if the proposed travel is by air.

43.

If there is any parenting matter relating to the child X that the Mother and Father are unable to resolve, they must both make all necessary arrangements to attend upon a Family Relationships Centre to seek to resolve such issue prior to commencing any new proceedings under the Family Law Act 1975 in any court.

44.

The Mother and Father are to do all things necessary to enrol and subsequently attend (omitted) Child and Family Counselling Service or such other service as recommended by the Independent Children’s Lawyer in consultation with the Family Consultant for assessment including ensuring the attendance of the child X if and when required.

45.

The Mother and the child X are to attend and participate in counselling and/or group work programs as recommended by the (omitted) Child and Family Counselling Service with a view to repair and improve the attachment relationship between them.

46.

For the purpose of counselling as referred to in the immediately preceding Orders the Mother and Father are permitted to provide to the (omitted) Child and Family Counselling Service copies of the following documents:

(a) these Orders;

(b) the Reasons for Judgment of the Court;

(d) the Family Report released to the parties by the Court on 14 November 2012.

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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