Mason and Taylor - [2012] FamCA 768

FAMILY COURT OF AUSTRALIA

MASON & TAYLOR

[2012] FamCA 768

FAMILY LAW – CHILDREN – With whom a child shall live – international relocation – best interests of the child

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Beach and Stemmler (1979) FLC 90-692
CDJ v VAJ (1998) 197 CLR 172
Chapman and Palmer (1978) FLC 90-510
Cowley & Mendoza [2010] FamCA 597
Flanagan v Handcock (2001) FLC 93-074
George and Radford (1976) FLC 90-060
Heath & Hemming [2011] FamCA 749
Kelley and Kelley (1981) FLC 91-002
Mahoney and McKenzie [1993] FamCA 78; (1993) FLC 92-408
Preston & Preston [2011] FamCA 618
Skrabl and Leach (1989) FLC 92-016

APPLICANT:

Ms Mason

RESPONDENT:

Mr Taylor

INDEPENDENT CHILDREN’S LAWYER:

Damien Carter

FILE NUMBER:

BRC

10521

2009

DATE DELIVERED:

6 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

1, 26 and 27 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Awyzio
DA Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bourke

SOLICITOR FOR THE RESPONDENT:

Terence O’Conner Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Quinn

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Damien Carter
Carter Farquar Mediation and Family Law

Orders

That the father and the mother shall have equal shared parental responsibility for the child, Y, born … March 2002 (“the child”).
That the child shall live with, spend time with, and/or communicate with each of her parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, then as follows:
(a) The shall live with the father in Australia;
(b)The mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the mother by telephone and/or Skype (or other similar forms of communication) each Sunday and Thursday between 5:30 pm and 6:30 pm (Brisbane time), with the mother to initiate such calls, and at any reasonable time requested by the child;
(c) The child shall spend time with the mother:
(i)From 23 September 2012 until 13 October 2012 for the purposes of attending the mother’s wedding in Europe, the mother to be solely responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and
(ii)In either Switzerland or Australia, at the mother’s election, for the whole of the June/July Queensland school holidays each year and for a period of four weeks over the December/January school holidays each year with the parents being equally responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and
(iii)Any such time during the December/January school holidays each year shall only include 24, 25 and 26 December commencing in 2013 and then only in each alternate year thereafter; and

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 Mason and Taylor

Details

AGLC: MASON & TAYLOR [2012] FamCA 768
Case: [2012] FamCA 768
Decision Date: 6 September 2012

CaseChat Overview and Summary

This matter concerned parenting orders sought by the father and the mother in relation to their child, Y. The proceedings were before Forrest J.

The court was required to determine the parenting arrangements for the child, including issues of parental responsibility, living arrangements, time spent with each parent, communication between parents and child, and the allocation of costs associated with the child's travel. The court also considered provisions for the child's education and the exchange of information between parents regarding the child's health and welfare.

Forrest J made orders for equal shared parental responsibility for the child. The child was to live with the father in Australia, with provisions for the child to spend time with and communicate with the mother. These arrangements included specific periods for the child to be with the mother in Europe and Australia, including school holidays, and detailed communication protocols. The court also ordered that the child attend a German language course and established mechanisms for parents to communicate with the child's medical and educational providers, and to be kept informed of the child's health and welfare.

The court dismissed all outstanding applications for parenting orders and included a fact sheet detailing the obligations created by the orders and the consequences of contravention.

Orders

Orders of the court

That the father and the mother shall have equal shared parental responsibility for the child, Y, born … March 2002 (“the child”).

That the child shall live with, spend time with, and/or communicate with each of her parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, then as follows:

(a) The shall live with the father in Australia;

(b) The mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the mother by telephone and/or Skype (or other similar forms of communication) each Sunday and Thursday between 5:30 pm and 6:30 pm (Brisbane time), with the mother to initiate such calls, and at any reasonable time requested by the child;

(i) From 23 September 2012 until 13 October 2012 for the purposes of attending the mother’s wedding in Europe, the mother to be solely responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and

(ii) In either Switzerland or Australia, at the mother’s election, for the whole of the June/July Queensland school holidays each year and for a period of four weeks over the December/January school holidays each year with the parents being equally responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and

(iii) Any such time during the December/January school holidays each year shall only include 24, 25 and 26 December commencing in 2013 and then only in each alternate year thereafter; and

(iv) Holiday arrangements shall be made such that the child does not miss any school just before the school holidays or just after the school holidays save for when there is prior written agreement of the parents; and

(v) In Australia, for half of all other Queensland school holiday periods; and

(vi) In the event that the mother returns to Australia for a visit outside of Queensland school holiday periods, then for periods of three hours between 3 pm and 6 pm three afternoons during the week and each alternate weekend during any such visit from 3 pm Friday to 6 pm Sunday.

During any time that the child is absent from Australia in accordance with these Orders, the mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the father by telephone and/or Skype (or other similar forms of communication) each Sunday and Thursday between 5:30 pm and 6:30 pm (Brisbane time), with the father to initiate such calls, and at any reasonable time requested by the child.

That in respect of the equal sharing of the costs of the child’s flights and the costs of the flights of an accompanying adult, in the first instance, the mother purchase the airline tickets for travel between Australia and Switzerland and the father shall pay to the mother one half of these travel costs upon receipt of the child’s itinerary for that particular trip and a copy of the receipt for the tickets, payment to be made by him into a bank account nominated by the mother;

That the child shall attend a German language course from Years 8 to 10 inclusive, the father to forthwith do all things necessary to ensure that she is enrolled in that Program and in the event that the child is not accepted into that Program for any reason then the father shall ensure that she shall receive weekly private tutoring in standard German at the father’s expense whilst she is in Years 8 to 10.

Each party shall do all such things and sign all such documents as may be necessary or required to:

(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;

(b) Speak to, and receive oral or written communication from, any school or other educational institution attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;

(c) Keep the other parent appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party within 48 hours of same occurring;

(d) Notify as soon as reasonably practicable the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

The mother and father shall be at liberty to attend any and all school and extra-curricular activities undertaken by the child and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.

The Independent Children’s Lawyer shall, at his discretion, meet with the child within one week of the date of these Orders to explain them to her.

The Independent Children’s Lawyer shall be discharged 28 days from the date of these Orders.

Dismissal of Other parenting Applications

10.

All outstanding Applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

11.

After the expiration of 28 days from the date of these Orders, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

12.

Pursuant to s 65DA(2) and s 62B of the Act, 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.

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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