Leahy and Colliss - [2017] FCCA 1992

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEAHY & COLLISS

[2017] FCCA 1992

Catchwords:
FAMILY LAW – Parenting – relocation – competing live with applications – three children aged 11, 9 and 4.

Legislation:

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

Cases cited:

Banks & Banks [2015] FamCAFC 36
Bondelmonte v Bondelmonte & Another [2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
McCall & Clark [2009] FamCAFC 92
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
R v R [2000] FamCA 43; 25 Fam LR 712

Sayer & Radcliffe & Anor [2012] FamCAFC 2096

Starr & Duggan [2009] FamCAFC 115

Applicant:

MR LEAHY

Respondent:

MS COLLISS

File Number:

DUC 93 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

15 – 16 March 2017

Date of Last Submission:

16 March 2017

Delivered at:

Parramatta

Delivered on:

23 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

Warwick McCarthy & Co Solicitors

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Campbell Paton & Taylor

ORDERS

The parties shall have equal shared parental responsibility for the children:
(a)X, born on (omitted) 2006;
(b)Y, born on (omitted) 2009; and
(c)Z, born (omitted) 2012
The children shall live with the mother.
The mother is permitted to relocate with the children from (omitted), New South Wales to the (omitted)/(omitted) area, New South Wales area with the children.
Prior to the relocation, the children shall spend time with the father in accordance with the time provided for in the Interim Orders made on 7 September 2016.
Following relocation the children shall spend time with the father as agreed between the parties and failing agreement as follows:
(a)Subject to order 6(a) during school terms for one extended weekend from the conclusion of school on Thursday until Monday afternoon with the children to be returned to the mother by no later than 7pm and such contact shall occur on New South Wales gazetted long weekends whenever possible and if not agreed, on the fourth weekend of each school term.
(b)During New South Wales gazetted school holidays:
(i)For the first half of the April, October and December/January school holiday periods in even numbered years and the second half of such school holiday periods in odd numbered years; and
(ii)For all of the June-July school holidays with such period to commence from 12pm on the Saturday immediately following the conclusion of the school term and conclude at 12pm on the Saturday immediately preceding the resumption of school.
(c)At all other times as agreed.
Changeover shall occur as agreed between the parents, and in the absence of agreement:
(a)During school terms and to facilitate the children’s time with the father pursuant to Order 5(a) the parents shall cause the children to travel by aeroplane between (omitted) and (omitted).
(b)To implement Order 6(a), the parties shall share the cost of the children’s return airfares from (omitted) Airport and (omitted) equally and for that…

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 Leahy and Colliss

Details

AGLC: Leahy and Colliss [2017] FCCA 1992
Case: [2017] FCCA 1992
Decision Date: 23 August 2017

CaseChat Overview and Summary

In the matter of *Leahy and Colliss*, heard by Judge Obradovic, the dispute concerned parenting arrangements for three children. The orders indicate a disagreement regarding the children's living arrangements and the mother's proposed relocation.

The court was required to determine issues of equal shared parental responsibility, the children's primary residence, and whether to permit the mother to relocate with the children. Further, the court had to establish a detailed schedule for the children's time with each parent, including provisions for changeovers and communication, particularly in light of the proposed relocation. The court also addressed orders restraining disparaging remarks about a parent and ensuring both parents receive information regarding the children's schooling and medical care.

The court ordered equal shared parental responsibility for the children, with the children to live with the mother. Crucially, the mother was permitted to relocate with the children to a specified area in New South Wales. The orders then set out a comprehensive schedule for the children's time with the father, both before and after the relocation, including specific arrangements for school terms, school holidays, and changeovers, which involved air travel and shared costs. Provisions were also made for telephone communication, and both parents were restrained from making disparaging remarks about each other in the presence of the children. The court also made orders regarding the exchange of school and medical information and imposed a restraint on changing the children's school until the conclusion of the 2017 school year.

Orders

Orders of the court

The parties shall have equal shared parental responsibility for the children:

(a) X, born on (omitted) 2006;

(b) Y, born on (omitted) 2009; and

The children shall live with the mother.

The mother is permitted to relocate with the children from (omitted), New South Wales to the (omitted)/(omitted) area, New South Wales area with the children.

Prior to the relocation, the children shall spend time with the father in accordance with the time provided for in the Interim Orders made on 7 September 2016.

Following relocation the children shall spend time with the father as agreed between the parties and failing agreement as follows:

(a) Subject to order 6(a) during school terms for one extended weekend from the conclusion of school on Thursday until Monday afternoon with the children to be returned to the mother by no later than 7pm and such contact shall occur on New South Wales gazetted long weekends whenever possible and if not agreed, on the fourth weekend of each school term.

(b) During New South Wales gazetted school holidays:

(i) For the first half of the April, October and December/January school holiday periods in even numbered years and the second half of such school holiday periods in odd numbered years; and

(ii) For all of the June-July school holidays with such period to commence from 12pm on the Saturday immediately following the conclusion of the school term and conclude at 12pm on the Saturday immediately preceding the resumption of school.

Changeover shall occur as agreed between the parents, and in the absence of agreement:

(a) During school terms and to facilitate the children’s time with the father pursuant to Order 5(a) the parents shall cause the children to travel by aeroplane between (omitted) and (omitted).

(b) To implement Order 6(a), the parties shall share the cost of the children’s return airfares from (omitted) Airport and (omitted) equally and for that purpose:

(i) The mother shall be responsible for booking and paying for each alternate return flights of the children and accompanying adult and the father shall be responsible for booking and paying for any other return flights of the children and accompanying adult;

(ii) The parent who books and pays for the flights shall give the other parent at least 30 days’ notice and provide the booking details;

(iii) The parent who books the flight shall endeavour to book the departure flight after school on Thursday and return flight not later than 5pm Monday.

The parents shall have telephone communication with the children as agreed, and failing agreement as follows:

(a) When the children are in the mother’s care, the father will have Skype communication with the children between 6pm and 6.30pm on Tuesday, Thursday and Sunday night, and to facilitate this order the mother will ensure that she sets up a Skype account with computer access to the children and notify the father of the account name;

(b) When the children are in the father’s care, the mother will have Skype communication with the children between 6pm and 6.30pm on alternate nights and to facilitate this order the father will ensure that he sets up a Skype account with computer access to the children and notify the father of the account name.

Both parents are restrained from saying anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent or their family and further are restrained from allowing any other person to say anything to or in the presence of the children which is in anyway abusive, belittling or demeaning of the other parent or their family.

Each parent shall sign all documents and do all acts necessary to authorise the school or day care at which the children may attend, to furnish both parents with copies of all school reports, school photograph order forms, notices and advices concerning the children and any activities involving the children.

10.

Each parent will notify the other of any change of contact telephone number, or residential address 48 hours prior to such change occurring.

11.

Each parent shall inform the other as soon as practically possible, of any emergencies involving the children whilst the children are in the relevant party’s care.

12.

In the event that the children or any of them are required to attend a medical professional, each party will notify the other within 48 hours of the attendance, and will advise as to the need for that attendance, the time and place of such attendance, and the outcome of such attendance, and if a medical report is available, the party will provide the other party with a copy within seven days of receipt.

13.

The parties are restrained from changing the children’s school until the conclusion of the 2017 school year except by agreement in writing between them or further order of the Court. The Court notes that the restraint is not intended to operate to prevent the parties from applying for enrolment at appropriate schools for the children to commence in the 2018 school year.

14.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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