Mayes & Denning - [2017] FCCA 1754

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYES & DENNING

[2017] FCCA 1754

Catchwords:
FAMILY LAW – Final parenting – limited issue of the child’s time with the father – change of name – international travel.

Legislation:

Family Law Act 1975, s.65DA

Federal Circuit Court Act 2001, ss.14, 18

Cases cited:

Chapman & Palmer (1978) FLC 90-150
Slade & Hewitt [2012] FMCAfam 812

Applicant:

MS MAYES

Respondent:

MR DENNING

File Number:

PAC 4944 of 2014

Judgment of:

Judge Obradovic

Hearing date:

17 July 2017

Date of Last Submission:

17 July 2017

Delivered at:

Parramatta

Delivered on:

4 August 2017

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondent:

Mr Mackay

Solicitors for the Respondent:

Christopher Mackay Lawyer

ORDERS

All previous interim parenting orders are discharged.
The parties shall have equal shared parental responsibility for the child X born (omitted) 2010.
The child shall live with the mother.
The child shall live with the father as agreed to by the parties in writing, but failing agreement as follows:
During school term:
(a)In week 1 from after school on Thursday to before school on Friday;
(b)In week 2 from after school on Thursday to before school on Monday, or if Monday is a non-school day to before school on Tuesday.
During school holidays at the conclusion of Terms 1, 2 and 3 of the school year:
(a)In even numbered years from the conclusion of the school term until 5pm on the middle Saturday of the school holidays;
(b)In odd numbered years, from 5pm on the middle Saturday of the school holidays to the commencement of the new school Term;
During the school holiday period at the conclusion of Term 4 of the school year:
(a)At the conclusion of the 2017 school year on a week about basis commencing at 5pm on the first Saturday after the school term concludes;
(b)At the conclusion of the 2018 school year and each alternate year thereafter for the first half of the school holidays, commencing on the last day of school and concluding at 5pm on the middle day of the school holiday period (with the mother to collect the child from the father’s residence at the conclusion of such time); and
(c)At the conclusion of the 2019 school year and each alternate year thereafter, for the second half of the school holidays commencing at 5pm on the middle day of the school holiday period (with the father to collect the child from the mother’s residence at the commencement of such time) to the commencement of the new school year.
Commencing from the Christmas school holidays at the conclusion of the 2018 school year, either parent may take the child out of Australia for the purpose of a holiday during school holiday periods when the child would ordinarily be with that parent pursuant to these Orders, subject to the following conditions:
(a)The parent proposing to travel with the child is to provide notification to the other parent six weeks prior to the date of…

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: Mayes & Denning [2017] FCCA 1754
Case: [2017] FCCA 1754
Decision Date: 4 August 2017

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Obradovic in relation to the child X. The proceedings involved an application to change the child's surname, which was ultimately dismissed.

The court was required to determine the arrangements for the child's living situation, parental responsibility, and time spent with each parent, including during school terms and holidays. Further issues included international travel arrangements for the child and the issuance of passports.

Judge Obradovic ordered that all previous interim parenting orders be discharged. The parties were granted equal shared parental responsibility for the child. The child was to live with the mother, and spend time with the father during school terms on a rotating weekly basis. Specific arrangements were detailed for school holidays, including a week-about system for Term 4 holidays and alternating arrangements for other terms depending on the year. The court also made detailed provisions for international travel, requiring six weeks' notice and comprehensive itinerary details. Provisions were also made for the issuance of new passports for the child and the father, and for both parents to be kept informed of medical emergencies and to attend school events. The application to change the child's surname was dismissed.

Orders

Orders of the court

All previous interim parenting orders are discharged.

The parties shall have equal shared parental responsibility for the child X born (omitted) 2010.

The child shall live with the mother.

The child shall live with the father as agreed to by the parties in writing, but failing agreement as follows:

During school term:

(a) In week 1 from after school on Thursday to before school on Friday;

(b) In week 2 from after school on Thursday to before school on Monday, or if Monday is a non-school day to before school on Tuesday.

During school holidays at the conclusion of Terms 1, 2 and 3 of the school year:

(a) In even numbered years from the conclusion of the school term until 5pm on the middle Saturday of the school holidays;

(b) In odd numbered years, from 5pm on the middle Saturday of the school holidays to the commencement of the new school Term;

During the school holiday period at the conclusion of Term 4 of the school year:

(a) At the conclusion of the 2017 school year on a week about basis commencing at 5pm on the first Saturday after the school term concludes;

(b) At the conclusion of the 2018 school year and each alternate year thereafter for the first half of the school holidays, commencing on the last day of school and concluding at 5pm on the middle day of the school holiday period (with the mother to collect the child from the father’s residence at the conclusion of such time); and

(c) At the conclusion of the 2019 school year and each alternate year thereafter, for the second half of the school holidays commencing at 5pm on the middle day of the school holiday period (with the father to collect the child from the mother’s residence at the commencement of such time) to the commencement of the new school year.

Commencing from the Christmas school holidays at the conclusion of the 2018 school year, either parent may take the child out of Australia for the purpose of a holiday during school holiday periods when the child would ordinarily be with that parent pursuant to these Orders, subject to the following conditions:

(a) The parent proposing to travel with the child is to provide notification to the other parent six weeks prior to the date of the proposed departure including the proposed destination, written itinerary including dates of travel, mode of travel, flight numbers and times, rooming arrangements for any accommodation for the child, contact details of all places where the child will be staying including telephone number(s), email address(es) and postal address(es).

(b) The parent proposing to travel with the child shall confirm to the other parent the details of the arrangements referred to above one week prior to travel.

Within 28 days, both parents shall do all acts and things and sign all necessary documents to allow the issue of a new Australian passport for the child.

10.

Within 28 days the mother shall sign all documents and consents presented to her by the father for the purpose of the father applying for the issue of an (country omitted) Passport for the father.

11.

The parties shall keep each other advised of any medical emergency relating to the child.

12.

Each party shall be at liberty to attend all events involving the child including but not limited to sporting events, extra-curricular activities, school functions, parent teacher interviews, concerts, assemblies, birthdays, social functions.

13.

Each party shall be entitled to receive copies of any school reports and related material normally sent to parents of children attending the child’s school.

14.

Each party must ensure that his or her name and contact details are placed on file at the child’s school for use in case of an emergency.

15.

The application to change the child’s surname is dismissed.

16.

All outstanding issues are removed from the list of cases awaiting finalisation.

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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