MANIFOLD & ALDERTON - [2020] FCCA 2650

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANIFOLD & ALDERTON

[2020] FCCA 2650

Catchwords:
FAMILY LAW – Children – Final Hearing – Intractable conflict.

FAMILY LAW – Property – Lotto Win.

Legislation:

Family Law Act 1975 (Cth), ss.79(2), 79(4) (a) - (c), 79(4) (d) – (g), 75(2)

Cases cited:

Zyk and Zyk [1995] FamCA 135

Applicant:

MR MANIFOLD

Respondent:

MS ALDERTON

File Number:

BRC 10209 of 2012

Judgment of:

Judge Demack

Hearing dates:

19 & 20 September 2013; 5 March 2018;

2, 3 & 4 September 2019

Date of Last Submission:

4 September 2019

Delivered at:

Rockhampton

Delivered on:

21 September 2020

REPRESENTATION

Tranche 1

Counsel for the Applicant:

Mr Byrne

Solicitors for the Applicant:	Pearson & Associates Solicitors
Counsel for the Respondent:	Ms McDiarmid
Solicitors for the Respondent:	Michael Lynch Family Lawyers

Tranche 2

Counsel for the Applicant:

Mr Shoebridge

Solicitors for the Applicant:	Simonidis Steel Lawyers
Counsel for the Respondent:	Ms McDiarmid
Solicitors for the Respondent:	Australian Law Group

Tranche 3

Counsel for the Applicant:

Mr Shoebridge

Solicitors for the Applicant:	Simonidis Steel Lawyers
Counsel for the Respondent:	Mr B Dodd
Solicitors for the Respondent:	Best Wilson Buckley Family Law

ORDERS

Parenting

That all previous Parenting Orders be discharged.

Parental Responsibility

That the Mother and Father have equal shared parental responsibility for all decisions to be made in relation to the children’s, long term care, welfare and development.
That the Mother have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with her.
That the Father have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with him.

Living Arrangements and communication

That the children live with the mother and spend time with the Father at all times as may be agreed between the parties, but failing agreement, as follows:
(a)Each alternate weekend, from the conclusion of school Wednesday (or 3.00pm in the event of a non-school day or if the children are not otherwise attending school) until before school Monday (or 9.00am in the event of a non-school day or if the children are not otherwise attending school);
(b)For one half of the school holidays periods (as gazetted by the school/s the children attend from time to time), with the Father to spend time with the children in the first half in all even numbered years and the second half in all odd numbered years;
(c)That for the purposes of determining the allocation of time during each school holiday period, the holiday periods commence on the last day of the school term and conclude on the first day of the new school term;
(d)That where a public holiday or student free day occurs immediately adjacent to a school holiday period, those days are to be considered as part of the school holiday periods;
(e)The number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the Father will retain…

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 MANIFOLD & ALDERTON

Details

AGLC: MANIFOLD & ALDERTON [2020] FCCA 2650
Case: [2020] FCCA 2650
Decision Date: 21 September 2020

CaseChat Overview and Summary

In the matter of Manifold & Alderton, Judge Demack of the Family Court of Australia considered applications concerning the children's living arrangements, parental responsibility, and property settlement, including a significant lotto win. The proceedings addressed the complex issues arising from an intractable conflict between the parents.

The court was required to determine the most appropriate parenting orders for the children, specifically regarding their day-to-day care, time spent with each parent, and communication arrangements. Additionally, the court had to make orders concerning the children's schooling, extra-curricular activities, medical care, and overseas travel. The property settlement, influenced by a substantial lotto win, was also a key issue before the court.

Judge Demack's reasoning led to orders establishing equal shared parental responsibility for long-term decisions, with the mother having day-to-day responsibility when the children are with her, and the father having day-to-day responsibility when they are with him. Specific, detailed arrangements were made for the children's living arrangements, including alternating weekends, half of school holidays, and special occasions like Christmas and Easter, with provisions for public holidays and school breaks. The court also made orders facilitating communication between parents and children, outlining procedures for changeovers, and detailing how information regarding schooling, medical care, and travel would be shared. The court further ordered that neither parent would denigrate the other in the presence of the children and prohibited physical discipline.

The final orders discharged all previous parenting orders and dismissed outstanding parenting applications. The court also permitted overseas travel under specific conditions, including 30 days' written notice, provision of itineraries and contact details, and return tickets, while restraining travel to countries not party to the Hague Convention. Passports were to be held by the mother and released to the father upon request for travel, with strict return provisions.

Orders

Orders of the court

Parenting

That all previous Parenting Orders be discharged.

Parental Responsibility

That the Mother and Father have equal shared parental responsibility for all decisions to be made in relation to the children’s, long term care, welfare and development.

That the Mother have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with her.

That the Father have day-to-day responsibility for the children’s care, welfare and development when the children are spending time with him.

Living Arrangements and communication

That the children live with the mother and spend time with the Father at all times as may be agreed between the parties, but failing agreement, as follows:

(a) Each alternate weekend, from the conclusion of school Wednesday (or 3.00pm in the event of a non-school day or if the children are not otherwise attending school) until before school Monday (or 9.00am in the event of a non-school day or if the children are not otherwise attending school);

(b) For one half of the school holidays periods (as gazetted by the school/s the children attend from time to time), with the Father to spend time with the children in the first half in all even numbered years and the second half in all odd numbered years;

(c) That for the purposes of determining the allocation of time during each school holiday period, the holiday periods commence on the last day of the school term and conclude on the first day of the new school term;

(d) That where a public holiday or student free day occurs immediately adjacent to a school holiday period, those days are to be considered as part of the school holiday periods;

(e) The number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the Father will retain the child for the one additional night; and

(f) That paragraph 4(a) and 4(b) of these Orders will be suspended during the school holiday periods.

That the children shall spend time with the Mother and the Father on special occasions at all times as may be agreed between the parties, but failing agreement, as follows:

(a) In relation to the Christmas special days, the children shall spend time with the Father from 5.00pm Christmas Eve until 5.00pm Boxing Day in 2021 and each odd numbered year thereafter and with the Mother from 5.00pm Christmas Eve until 5.00pm Boxing Day in 2020 and each even numbered year thereafter;

(b) In relation to the Easter special days, the children shall spend time with the Mother from 5.00pm Good Friday until 5.00pm Easter Sunday in 2020 and each even numbered year thereafter and with the Father from 5.00pm Good Friday until 5.00pm Easter Sunday in 2021 and each odd numbered year thereafter;

(c) In the event the children are not otherwise living with the Mother on Mother’s Day pursuant to these Orders, then the children shall spend time with the Mother from 7.00pm the Saturday before Mother’s Day until the commencement of school the Monday following Mother’s Day, with the Father to return the children to the Mother at Suburb B McDonald’s on Saturday;

(d) In the event the children are not otherwise living with the Father on Father’s Day pursuant to these Orders, then the children shall spend time with the Father from 7.00pm the Saturday before Father’s Day until the commencement of school the Monday following Father’s Day, with the Mother to deliver the children to the Father at Town B McDonald’s on Saturday; and

(e) On each of the children’s birthdays, the non-resident parent shall spend time with the children from after school until 8.00pm and in the event of a non-school day from 3.00pm until 8.00pm, with the non-resident parent to collect and return the children from school and/or Town B McDonald’s.

That the Mother and the Father be at liberty to telephone and/or Skype the children each Wednesday between 5.30pm and 6.00pm, or at any other time as agreed between the parents and with the parents to ensure the children are available to receive that communication.

That the parents will each facilitate the children communicating with the other parent at all reasonable times as may be requested by the children.

Changeover

That unless otherwise agreed between the parties and/or provided for in these Orders, changeovers are to occur at the children’s school/s or in the event, changeover is a non-school day, changeover is to occur at Town B McDonald’s.

10.

That the Mother and the Father may have a nominee attend changeover, on the condition that such nominee is a responsible adult known to the children and not less than 4 hours’ notice by text message is provided to the other parent that a nominee will be attending changeover.

The children’s schooling and extra-curricular activities

11.

That each parent is hereby authorised to obtain from the children’s schools all notices, letters, school reports, notice of excursions and invitations and to attend parent/teacher interviews or other activities to which parents are invited and, in the event that such documents are provided to one parent while the children are in their care, they will ensure that the other parent receives a copy in a timely manner.

12.

That each party, if required, shall authorise the children’s schools to inform the other parent of all extra-curricular activities that occur at the children’s school including parent/teacher meetings, sporting/ social events and any other activities to which the parents are invited.

13.

That in the event the children bring to the home of either party any school, sport or other social activity newsletters, parent letters or general notices, the parent receiving the information will provide a copy to the other parent in a timely manner.

14.

That both parties shall be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to the first day of school, performances, concerts, sporting events, school activities, fees and functions, Christmas parties and other special occasions and that both parties inform the other party of such events in a timely manner.

15.

That neither party will enrol the children in any further extra-curricular activities that will impact upon the other parent’s time with the children without the prior written consent of the other party, such consent not to be unreasonably withheld.

Specific issues

16.

That each parent shall keep the other parent informed of the names and addresses of any and all medical practitioners or other health professionals who are involved in treating or caring for the children.

17.

That each parent shall authorise each of the children’s medical practitioners or other health professionals to discuss with the other parent the children’s health and medical treatment.

18.

That the Mother and the Father shall inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by the children and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such condition.

19.

That each party shall advise the other of changes to their residential address and/or home telephone numbers and/or mobile telephone numbers within 24 hours of any such change.

20.

That the parents shall communicate by way of email or text messages.

21.

That the parents undertake to the Court that whilst the children are in their care they will not denigrate the other parent and/or the other parent’s partner and family in the hearing or presence of the children and will use their best endeavours to ensure that others do not denigrate the other parent and/or the other parent’s partner and family in the hearing or presence of the children.

22.

That neither parent use physical measures to discipline the children.

23.

That the parents are to seek a Consultant Paediatrician together, with a referral being sought from the children’s treating Medical Practitioner. Both parents are to attend the initial consultation for both children.

Overseas travel

24.

That pursuant to section 65Y(2) of the Family Law Act 1975 each party is permitted to take the children out of the Commonwealth of Australia for the purpose of a holiday during any period where the children are spending time with that parent provided that:

(a) The travelling parent provides the other parent with 30 days written notice of their intention to travel with the children; and

(b) The travelling parent provide to the other parent 14 days prior to the children’s departure date:

`a general itinerary and telephone numbers at which the children may be contacted while outside of Australia;

(i) copies of the pre-paid return tickets for the children’s travel; and

(ii) in the event that there is a material change in that itinerary or telephone number, the party shall forthwith notify the other parent of that change.

25.

That unless otherwise agreed in writing between the parties, the Mother and the Father are restrained from taking the children to or via a country that is not ratified the Hague Convention on the Civil Aspect of International Child Abduction.

26.

That the other party provide to the travelling party, not less than 14 days prior to departure, the passport in their possession, or earlier if required for the purposes of obtaining visa or other necessary travelling documentation.

27.

That within 14 days of a written request, each party will do all such acts and sign all such documents as may be required to apply for a passport, renewal of passport or any other documents deemed necessary for the purpose of the children’s travel including but not limited to visas. The children’s passports shall be held by the Mother and released to the Father within 14 days of said request and the passport shall be returned to the Mother within two (2) days of the Father and the children’s return to the Commonwealth of Australia.

28.

That each party shall provide any details requested in relation to the passport for the child (for example passport number, expiry date) that they have in their possession to other parent within 7 days if such a request.

29.

That all outstanding parenting applications be dismissed.

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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