LEISA & TAIT - [2014] FamCA 152

FAMILY COURT OF AUSTRALIA

LEISA & TAIT

[2014] FamCA 152

FAMILY LAW – CHILDREN – Best Interests – Where the mother sought orders that the child live with her and spend substantial and significant time with the father – Where the child is currently in the primary care of the father – Where the father sought orders that the child continue to live with him and also sought a reduction in time the child currently spends with the mother – Where the mother contended that little weight should be given to the reports of the single expert – Where the court determined that the single expert’s evidence was complete and well considered and is accepted – Where the single expert opined that preserving the stability in the child’s routine is in the child’s best interests – Where the court determined that any significant change in the child’s parenting arrangements at present carries with it the unacceptable risk of disrupting the child’s emotional wellbeing – Where an order is made that the child live with the father and spend substantial and significant time with the mother.

Family Law Act 1975 (Cth) ss 60B; 60CA; 60CC; 61DA, 65DAA

Gaffney & Gaffney [2012] FamCAFC 140
McGregor and McGregor [2012] FamCAFC 69

APPLICANT:

Ms Leisa

RESPONDENT:

Mr Tait

FILE NUMBER:

SYC

7091

2010

DATE DELIVERED:

18 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

28-31 January 2014 and
3 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Sydney Family Law

Orders

That the mother and father shall have equal shared parental responsibility for the child of the marriage J born … 2008, (“the child”).
That the child shall spend time with the mother as follows:
(a)From the date of these orders until the commencement of school in 2016:
During School Terms
i.In week one from the conclusion of school on Friday to 3pm the following Sunday.
ii.In week two from 3pm on Sunday until the commencement of school the following Tuesday.
(b)From the commencement of school in 2016 the child shall spend time with the mother:
During School Terms
i.In week one from the conclusion of school on Friday to the commencement of school on the following Monday; and
ii.In week two from 3pm Sunday to the commencement of school on the following Tuesday
(c) During the short school holidays in 2014
i.In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and
ii.In the alternate weeks from 3pm Sunday until 3pm on Tuesday.
(d) In the long school holidays in 2014:
i.In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and
ii.In the alternate weeks from 3pm…

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.

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Details

AGLC: LEISA & TAIT [2014] FamCA 152
Case: [2014] FamCA 152
Decision Date: 18 March 2014

CaseChat Overview and Summary

Aldridge J made orders concerning the parental responsibility and time arrangements for the child J. The dispute concerned the arrangements for the child following the separation of the parents.

The court was required to determine the orders for equal shared parental responsibility, the specific times the child would spend with each parent, and ancillary matters including communication, notification of emergencies, school-related information, and counselling. The court also addressed geographical proximity of the parents and the potential for the child's removal from Australia.

The court ordered equal shared parental responsibility for J. Detailed provisions were made for the child's time with the mother, including during school terms, school holidays, and specific arrangements for Christmas and birthdays. The child was to live with the father at all other times. Further orders stipulated that changeovers were to occur at the child's school, with provisions for non-school days. The parties were also ordered to facilitate communication with the child, notify each other of emergencies, and share information regarding the child's education and welfare. The court also imposed restrictions on negative commentary about the other parent and mandated attendance at parenting courses and counselling. Additionally, the mother was ordered to relocate within a specified distance of the father's home, and the parties were given liberty to seek an order for the child to be placed on the Airport Watch list.

Orders

Orders of the court

That the mother and father shall have equal shared parental responsibility for the child of the marriage J born … 2008, (“the child”).

That the child shall spend time with the mother as follows:

(a) From the date of these orders until the commencement of school in 2016:

During School Terms

i. In week one from the conclusion of school on Friday to 3pm the following Sunday.

ii. In week two from 3pm on Sunday until the commencement of school the following Tuesday.

(b) From the commencement of school in 2016 the child shall spend time with the mother:

During School Terms

i. In week one from the conclusion of school on Friday to the commencement of school on the following Monday; and

ii. In week two from 3pm Sunday to the commencement of school on the following Tuesday

i. In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and

ii. In the alternate weeks from 3pm Sunday until 3pm on Tuesday.

(d) In the long school holidays in 2014:

i. In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and

ii. In the alternate weeks from 3pm Sunday until 3pm on Tuesday.

(e) In the short school holidays in 2015:

i. In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and

ii. In the alternate weeks from 3pm Sunday until 3pm the following Wednesday.

(f) In the long school holidays in 2015:

i. In the weeks the child would normally spend with the mother from Friday to Sunday the child spend time with the mother from 3pm Friday until 3pm the following Wednesday.

ii. In the alternate weeks from 3pm Sunday until 3pm on Tuesday.

(g) In the short school holidays in 2016 and every year thereafter the child will spend time with the mother in the first week of each school holiday period.

(h) In the long school holidays in 2016 and every subsequent even numbered year from after school on the last day of term until 3pm seven (7) days later and every second week thereafter with changeover at 3pm, noting that the last week for one of the parents may be a period of less than seven (7) days and that the parent with whom the child is staying at the time deliver the child to school on the first day of the term for the new school year.

(i) In the long school holidays in 2017 and every subsequent odd numbered year from 3pm on the seventh day after the last day of school until 3pm seven (7) days later and every second week thereafter noting that the last week for one of the parents may not be a full week and that the parent with whom the child is staying at the time deliver the child to school on the first day of the term for the new school year.

That the child shall live with the father at all other times.

That notwithstanding the above:

(a) The child shall spend time with the father:

i. From 6pm on Christmas Eve until 12 noon on Christmas Day in odd numbered years and from 12 noon Christmas Day until 6pm on Boxing Day in even numbered years;

ii. From 6pm on the Saturday immediately preceding Father’s Day until the commencement of school immediately following Father’s Day.

(b) The child shall spend time with the mother:

i. From 6pm on Christmas Eve until 12 noon on Christmas Day in even numbered years and from 12 noon Christmas Day until 6pm on Boxing Day in odd numbered years.

ii. From 6pm on the Saturday immediately preceding Mother’s Day until the commencement of school immediately following Mother’s Day.

That on the child’s birthday, the parent with whom the child is not residing or spending time with on that day, shall spend time with the child from after school until 6pm if it is a school day or from 10am until 1pm if it is a non-school day.

That changeover shall take place at the child’s school and in the event changeover is to take place on a non-school day, the parent with whom the child is not living, shall collect him from the residence of the parent at the time the child is to commence living with that parent.

That each party shall be entitled to telephone the child at 6pm every second day that the child is not living with that parent. The parent with whom the child is living at that time shall ensure that the child is available to receive that call and shall give the child privacy during the call which shall not exceed fifteen (15) minutes.

That each party shall notify the other of any emergencies, serious medical injury or illness relating to the child whilst the child is in that party’s care including providing the other party’s sufficient details to enable both parties to be consulted and advised with respect to such orders and/or conditions and/or any treatments recommended or provided.

That the parties shall keep each other advised of their contact telephone numbers.

10.

That the parties shall keep each other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.

11.

That the father and mother do all things necessary to authorise the child’s school to provide the other parent on a regular basis of copies of all school reports, school newsletters and other information regarding the child’s school activities.

12.

That the father and the mother be entitled to attend all school functions, sports carnivals and other school events to which parents are invited.

13.

That the parties shall each be entitled to take from any school attended to by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant, oral or written advice, affecting the education, health and welfare of the child and for this purpose the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

14.

That the parties are hereby restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.

15.

That each of the parties is to enrol in and complete a parenting after separation course within three (3) months of these orders.

16.

The parties shall take all necessary steps to agree upon a family counsellor and to attend upon that counsellor themselves and with the child as directed by the counsellor for such time and periods as the counsellor thinks desirable. In the event that the parties are unable to agree the counsellor shall be a counsellor nominated by Dr A.

17.

That the child shall attend B School in Suburb D unless both parents agree to a change of school.

18.

That the mother shall, within three (3) months of the making of these orders, move to a residence within twenty (20) kilometres of the father’s home.

19.

That within seven (7) days from the date of these orders the parties are at liberty to relist the matter to seek an order that the child be placed on the Airport Watch list, also known as the PACE Alert system, and prevent the child’s removal from Australia.

20.

That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21.

That all material produced on subpoena be returned.

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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