MANNING & PEARSON - [2015] FCCA 90

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANNING & PEARSON

[2015] FCCA 90

Catchwords:
CHILD SUPPORT – Payment of school fees and medical expenses – father not involved in enrolment at private school.

FAMILY LAW – Parenting – Asperger’s and Attention Deficit Hyperactivity Disorders - when child should fly unaccompanied – who should pay airfares.

Legislation:

Child Support (Assessment) Act 1989, ss.123, 145

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

Federal Circuit Court Rules 2001, r.25A.07

KB & TC (2005) FLC 93-224
Champness & Hanson (2009) FLC 93-407
F & S [2003] FMCAfam 531
Lightfoot v Hampson (1996) FLC 92 663
Mee v Ferguson (1986) FLC 91-716
MRR v GR (2010) FLC 93-424
Mulvaney & Lane (2009) FLC 93-404
Runcorne & Raine [2008] FamCA 837
Wainder & Wainder (2011) FLC 93-473
Wild v Ballard (1997) FLC 92 771

Applicant:

MR MANNING

Respondent:

MS PEARSON

File Number:

LNC 648 of 2007

Judgment of:

Judge Roberts

Hearing dates:

12 and 13 June 2014

Date of Last Submission:

13 June 2014

Delivered at:

Launceston

Delivered on:

29 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr P McVeity

Solicitors for the Applicant:

Philip Welch

The Respondent appeared in person

ORDERS

That the Orders of the Federal Magistrates Court of Australia of 17 October 2011 are discharged.
That except as otherwise provided in these Orders MR MANNING (“the father”) and MS PEARSON (“the mother”) have equal shared parental responsibility for [X] born [omitted] 2003 (“the child”).
That the child live with the mother.
That the child communicate and spend time with the father as may be agreed between the father and the mother in writing, but failing agreement as follows:
(a)By telephone each Sunday at 5.00 p.m. with the father to initiate the call on the first Sunday and the mother to initiate the call on the second Sunday of each fortnightly cycle;
(b)For half of the child’s school holidays at the end of Term 1 and Term 2 with such to commence on the first Saturday of the relevant school holiday;
(c)During the child’s school holiday at the end of Term 3 from the first Saturday until the last Saturday;
(d)During the child’s long summer school holiday commencing at the end of Term 4 in odd numbered years commencing on the first day of the holiday and concluding three weeks before the start of Term 1 of the following year;
(e)During the child’s long summer school holidays commencing at the end of Term 4 in even numbered years for a period commencing two weeks after the end of Term 4 and concluding one week before the start of Term 1of the following year;
(f)During Term 1 from Friday evening until Monday evening of the Tasmanian Eight Hours Day long weekend in March;
(g)During Term 2 from Friday evening until Monday evening of the Tasmanian Queen’s Birthday long weekend in June;
(h)During Term 3 from Friday evening until Sunday evening of the fifth weekend of that Term;
(i)During Term 4 from Friday…

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 MANNING & PEARSON

Details

AGLC: MANNING & PEARSON [2015] FCCA 90
Case: [2015] FCCA 90
Decision Date: 29 January 2015

CaseChat Overview and Summary

This matter concerned an appeal from orders made by the Federal Magistrates Court of Australia, brought before Judge Roberts. The dispute involved Mr. Manning (the father) and Ms. Pearson (the mother) regarding parenting arrangements for their child, [X], born in 2003. The proceedings also touched upon the payment of school fees and medical expenses, and the circumstances under which the child should travel unaccompanied.

The court was required to determine the appropriate orders for equal shared parental responsibility, the child's living arrangements, and the specific communication and time arrangements between the child and each parent. Further issues included the arrangements for the child's air travel, including who should be responsible for booking and paying for airfares, and the conditions under which unaccompanied travel would be permitted, particularly in light of the child's diagnoses of Asperger's and Attention Deficit Hyperactivity Disorders. The court also considered provisions for school enrolment changes and the notification of medical appointments and treatments.

Judge Roberts discharged the previous orders of the Federal Magistrates Court and made new orders establishing equal shared parental responsibility, with the child to live with the mother. The orders detailed a comprehensive schedule for the child to communicate and spend time with the father, including specific provisions for school holidays and long weekends. Crucially, the court addressed the practicalities of air travel, stipulating that the mother would book and pay for airfares for certain periods of the father's time, while the father would do so for other periods. Unaccompanied travel was permitted after the child's 12th birthday, with a liberty to apply if a paediatrician advised against it. The orders also included provisions for notification of school changes, medical appointments, administration of medication, and a restraint on denigrating the other parent.

Orders

Orders of the court

That the Orders of the Federal Magistrates Court of Australia of 17 October 2011 are discharged.

That except as otherwise provided in these Orders MR MANNING (“the father”) and MS PEARSON (“the mother”) have equal shared parental responsibility for [X] born [omitted] 2003 (“the child”).

That the child live with the mother.

That the child communicate and spend time with the father as may be agreed between the father and the mother in writing, but failing agreement as follows:

(a) By telephone each Sunday at 5.00 p.m. with the father to initiate the call on the first Sunday and the mother to initiate the call on the second Sunday of each fortnightly cycle;

(b) For half of the child’s school holidays at the end of Term 1 and Term 2 with such to commence on the first Saturday of the relevant school holiday;

(d) During the child’s long summer school holiday commencing at the end of Term 4 in odd numbered years commencing on the first day of the holiday and concluding three weeks before the start of Term 1 of the following year;

(e) During the child’s long summer school holidays commencing at the end of Term 4 in even numbered years for a period commencing two weeks after the end of Term 4 and concluding one week before the start of Term 1of the following year;

(f) During Term 1 from Friday evening until Monday evening of the Tasmanian Eight Hours Day long weekend in March;

(g) During Term 2 from Friday evening until Monday evening of the Tasmanian Queen’s Birthday long weekend in June;

(h) During Term 3 from Friday evening until Sunday evening of the fifth weekend of that Term;

(i) During Term 4 from Friday evening until Monday evening of the Northern Tasmanian Recreation Day long weekend in November; and

(j) On such other occasions and on such terms as may be agreed between the parties.

That for the purposes of the child spending time with the father in accordance with these Orders, and unless otherwise agreed by the parties:

(a) The child is to travel on flights scheduled to depart Tasmania no earlier than 9.00 a.m. and no later than 6.15 p.m. and to depart Melbourne no later than 5.00 p.m. on the relevant day;

(b) Until the child travels unaccompanied in accordance with these Orders, the child is to be accompanied on all flights from Tasmania to Melbourne by either the mother or her nominee and on all flights from Melbourne to Tasmania by either the father or his nominee;

(c) The location for handover at the commencement of the father’s time with the child is to be at the arrivals gate at the Tullamarine Airport, Melbourne and the location of handover at the conclusion of that time is to be at the arrival gate at Launceston Airport.

(d) The mother must book and pay the airfares for all relevant passengers on all flights in relation to the time that the child spends with the father in accordance with subparagraphs (b) to (e) inclusive of Order No. 4 hereof and provide to the father full details of the bookings (including copies of itineraries) at least 14 days prior to the start of the travel; and

(e) The father must book and pay the airfares for all relevant passengers on all flights in relation to the time that the child spends with him in accordance with subparagraphs (f) to (i) inclusive of Order No. 4 hereof and provide to the mother full details of the bookings (including copies of itineraries) at least 14 days prior to the start of the travel.

That unless the parties otherwise agree in writing the child is to travel by air unaccompanied in relation to all travel after the child’s 12th birthday.

That the parties have liberty to apply in relation to Order No. 6 hereof if the child’s treating paediatrician is of the opinion that unaccompanied air travel after the child’s 12th birthday in accordance with Order No. 6 is not in the child’s best interests, provided that:

(a) the application is made and served not less than 60 days prior to the intended date of travel; and

(b) an affidavit from the child’s treating paediatrician is filed and served with the application.

That in the event the child is not in the care of the father on the child’s birthday, the father is to have telephone communications with the child at 7.30 a.m. on that day with the father to initiate the telephone call.

That in the event the child is not in the care of the mother on the child’s birthday, the mother is to have telephone communications with the child at 7.30 a.m. on that day with the mother to initiate the telephone call.

10.

That in the event the mother wishes to change the child’s school enrolment she must give the father written notice of and the reasons for the proposed change at least one month in advance of the proposed change and upon the giving of such notice the parties must make reasonable efforts to consult about the proposed change.

11.

That the mother and father must each advise the other in advance and where possible at least 14 days in advance of all specialist appointments for the child, including but not restricted to paediatric and psychological appointments, save and except in the event of a medical emergency in which case notification must be as soon as is reasonably practicable.

12.

That each party shall have the option of attending all specialist appointments arranged for the child.

13.

That the parties must each provide the other at handovers any prescribed medications for the child and each must administer such medication as recommended by the child’s treating health professional.

14.

That the parents must follow the recommendations of the child’s health care professionals as to his treatment.

15.

That each parent must notify the other as soon as practicable in the event of the child suffering a serious illness, being hospitalised or requiring a medical procedure while in the care of that parent.

16.

That both parents are restrained from denigrating the other parent in the presence of the child or permitting any third party to do so.

17.

That each parent must notify the other within 48 hours of any change to his or her residential address and/or contact telephone number.

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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