Massey and Norris and Anor - [2015] FCCA 3244

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSEY & NORRIS & ANOR

[2015] FCCA 3244

Catchwords:
FAMILY LAW – Children – parenting orders – assessment of competing contributions.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

SPS and PLS (2008) FLC 93-363

Maldera & Orbel [2014] FamCAFC 135

Applicant:

MS MASSEY

First Respondent:

MR NORRIS

Second Respondent:

REBEKAH BASSANO

File Number:

CSC 235 of 2007

Judgment of:

Judge Jarrett

Hearing date:

30 November 2015

Date of Last Submission:

1 December 2015

Delivered at:

Cairns

Delivered on:

4 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr MacPherson

Solicitors for the Applicant:

MacDonnells Law

Counsel for the Respondent:

Ms McArdle

Solicitors for the Respondent:

O’Reilly Stevens Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Williams

Solicitor for the Independent Children’s Lawyer:

Rebekah Bassano

ORDERS

IT IS ORDERED:

The orders dated 23 June 2009 be discharged.
The Mother have sole parental responsibility for X born (omitted) 2004 (“the Child”).
The Mother will keep the Father informed of all significant decisions made for the Child, including but not limited to choice of secondary schooling and significant health and medical matters.
Commencing upon the making of these orders, the Child live with the Mother.
Commencing on Friday, 11 December, 2015 the Child will spend time with the Father as follows:
(a)On each alternate weekend from Friday after the Child finishes school or at 3:00pm on non-school days until before school the following Monday, or Tuesday if Monday is a public holiday;
(b)On the first half of every March/April, June/July, September/October of the Child’s school holidays in all even numbered years and the second half of every March/April, June/July, September/October of the Child’s school holidays in all odd numbered years.
(c)Half of the Child’s Christmas school holidays alternating each year between the first and second half of the school holidays, commencing in the first half for the 2015/2016 school holidays and the second half in the 2016/2017 school holidays.
For the purposes of Order 5(b) and (c), the school holidays are deemed to commence at 3:00pm on the last day of the school term and conclude at 3:00pm on the last Sunday prior to the school term recommencing. The mid-holiday changeover for the March/April, June/July, September/October school holidays will occur on the second Saturday of the school holiday period at 3:00pm. The mid holiday changeover for the Christmas school holidays will occur at 3:00pm at the midpoint between the commencement of the school holidays and the conclusion of the school holidays.
If the Child is not already spending time with the Father on Father’s Day, the Child will spend time with the Father on Father’s Day from 9:00am to 4:00pm.
If the Child is not already spending time with the Mother on Mother’s Day, the Child will spend time with the Mother on Mother’s Day from 9:00am to 4:00pm.
All changeovers will occur at the Child’s school except for on non-school days on which changeover will occur at (omitted) Shopping Centre.
The party who…

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

Case: [2015] FCCA 3244
Decision Date: 4 December 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Jarrett in the Federal Circuit Court of Australia. The dispute involved the parents, Massey and Norris, regarding the future care and responsibility for their child, X. The court was required to determine the appropriate parenting arrangements for X, considering the existing orders and the welfare of the child.

The court was tasked with determining the extent of parental responsibility, where the child would live, and the specific arrangements for the child to spend time with each parent. Additionally, the court needed to address practical matters such as communication between the parents, travel arrangements, and the provision of passports. The court also considered the need for psychological assessment and assistance for the child, as well as orders restraining the parents from denigrating each other or discussing the proceedings with the child.

In its determination, the court discharged previous orders and made new orders granting the Mother sole parental responsibility for the Child. The Child was ordered to live with the Mother, with specific provisions for the Child to spend time with the Father on alternate weekends and during school holidays, including detailed arrangements for changeovers and holiday periods. The court also made orders regarding communication, travel, passports, and the psychological assessment of the Child, and restrained both parents from denigrating the other or discussing the proceedings with the Child. The Independent Children's Lawyer was discharged, and all outstanding applications were dismissed.

Orders

Orders of the court

IT IS ORDERED:

The orders dated 23 June 2009 be discharged.

The Mother have sole parental responsibility for X born (omitted) 2004 (“the Child”).

The Mother will keep the Father informed of all significant decisions made for the Child, including but not limited to choice of secondary schooling and significant health and medical matters.

Commencing upon the making of these orders, the Child live with the Mother.

Commencing on Friday, 11 December, 2015 the Child will spend time with the Father as follows:

(a) On each alternate weekend from Friday after the Child finishes school or at 3:00pm on non-school days until before school the following Monday, or Tuesday if Monday is a public holiday;

(b) On the first half of every March/April, June/July, September/October of the Child’s school holidays in all even numbered years and the second half of every March/April, June/July, September/October of the Child’s school holidays in all odd numbered years.

(c) Half of the Child’s Christmas school holidays alternating each year between the first and second half of the school holidays, commencing in the first half for the 2015/2016 school holidays and the second half in the 2016/2017 school holidays.

For the purposes of Order 5(b) and (c), the school holidays are deemed to commence at 3:00pm on the last day of the school term and conclude at 3:00pm on the last Sunday prior to the school term recommencing. The mid-holiday changeover for the March/April, June/July, September/October school holidays will occur on the second Saturday of the school holiday period at 3:00pm. The mid holiday changeover for the Christmas school holidays will occur at 3:00pm at the midpoint between the commencement of the school holidays and the conclusion of the school holidays.

If the Child is not already spending time with the Father on Father’s Day, the Child will spend time with the Father on Father’s Day from 9:00am to 4:00pm.

If the Child is not already spending time with the Mother on Mother’s Day, the Child will spend time with the Mother on Mother’s Day from 9:00am to 4:00pm.

All changeovers will occur at the Child’s school except for on non-school days on which changeover will occur at (omitted) Shopping Centre.

10.

The party who the Child is living with or spending time with will make the Child available for telephone time with the other party each Wednesday at 6:00pm.

11.

The parties are permitted to travel with the Child interstate and outside of Australia during their time with the Child. Each party will provide to the other party details of their intended travel with the Child at least 21 days before travelling.

12.

Each party will do all acts and things and sign all documents necessary to complete a passport application or a passport renewal for the Child within seven days of being requested by the other party.

13.

The Mother will hold the Child’s passport. The Mother will provide the Child’s passport to the Father, at least 14 days before the Father’s intended overseas travel with the Child. The Father will return the passport to the Mother within 14 days of arriving home from any overseas travel with the Child.

14.

The parties will communicate by email and text message for matters concerning the Child.

15.

In the event of an emergency concerning the Child or a serious medical matter, or if the Child attends the hospital or emergency department, the parent whom the Child is spending time with pursuant to these Orders will contact the other party as soon as practical but no less than 12 hours, by telephone.

16.

The parties will keep each other informed of their residential address and telephone numbers. In the event either party changes their residential address or telephone number they will inform the other party within 24 hours.

17.

The Child be psychologically assessed and assisted in accordance with the Family Report Writer’s recommendation in paragraph 46(c) of the Family Report filed 26 November, 2015 and for that purpose:

(a) despite order (2) hereof the Mother will provide a list of three (3) psychologists to the Father and the Father will select one (1) of the three (3) psychologists for that purpose; and

(b) the parties have leave to provide the psychologist with a copy of both Family Reports.

18.

The parties be restrained from denigrating the other parent in the Child’s presence.

19.

The parties be restrained from discussing these proceedings with the Child.

20.

The Independent Children’s Lawyer is discharged

21.

All outstanding applications are otherwise 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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