Meagher and Hermann and Anor - [2018] FCCA 1600

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEAGHER & HERMANN & ANOR

[2018] FCCA 1600

Catchwords:
FAMILY LAW – Parenting – where a now 11-year-old child was raised for the first 9½ years of her life by her mother and the man she thought was her father – where that man was shown not to be her biological father in early 2016 – where both the father and the biological father wish to spend time with the child – where the mother seeks to relocate from Melbourne to a regional city – where these are the fourth set of proceedings in relation to this child.

Legislation:

Family Law Act 1975, ss.64C, 65C,60CA, 61DA, 60CC,65DAA

Cases cited:

Bryans & Franks-Bryans [2007] FamCA 377

M and S (2007) FLC 93-313
Goode & Goode [2006] FamCA 1346
Mazorski & Albright (2008) 37 FLR 518
Tait & Densmore [2007] FamCA 1383

Applicant:

MR MEAGHER

First Respondent:

MS HERMANN

Second Respondent:

MR KENT

File Number:

DGC 2912 of 2010

Judgment of:

Judge Small

Hearing dates:

23-26 October 2017

Date of Last Submission:

28 February 2018

Delivered at:

Dandenong

Delivered on:

22 June 2018

REPRESENTATION

Counsel for the Applicant:

Dr Starkie

Solicitors for the Applicant:

L G Yves Michel & Co

Counsel for the First Respondent:

Ms Swann

Solicitors for the First Respondent:

Ken Smith & Associates

Counsel for the Second Respondent:

Self-Represented

Solicitors for the Second Respondent:

None

Counsel for the Independent Children's Lawyer:

Mr Brewer

Solicitors for the Independent Children's Lawyer:

Robert Halliday and Associates

ORDERS

All previous parenting orders in relation to the child [X] born 2006 (“[X]” or “the child”) are hereby discharged.
The child shall live with the mother and the mother shall have sole parental responsibility for the child.
The mother shall provide written information (meaning by post, email, text, or other electronic communication) to each of the Applicant and the Second Respondent within 7 days of making any major decision about [X]’s welfare, including, but not limited to decisions about the following:
·    A change in [X]’s living arrangements
·    A change in [X]’s school
·    A decision in relation to surgery, including major dental surgery, proposed for [X]
·    Any religious rite such as baptism or confirmation that [X] might be engaged in
But for the sake of clarity, the mother shall have the sole responsibility for making the final decision in all such cases.
The mother is permitted to relocate the residence of the child to Town G.
The child shall spend time and communicate with the Applicant:
(a)during school terms on the second, and, if applicable, the fifth weekend of each month from the conclusion of school or 3:30p.m. on Friday to 5:00 p.m. on Sunday;
(b)during school term holidays each year from the conclusion of school or 3:30 p.m. on the last day of the first and third school terms to 5:00 p.m. eight days later;
(c)during the long summer holidays each year for one period of two weeks by agreement between the parties, and failing…

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: [2018] FCCA 1600
Decision Date: 22 June 2018

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2006, with the primary dispute revolving around the child's residence and the allocation of parental responsibility. The proceedings were before Judge Small.

The court was required to determine the living arrangements for the child, the extent of each parent's responsibility in decision-making regarding the child's welfare, and the specific times and communication arrangements between the child and each parent. Additionally, the court needed to address the mother's proposed relocation with the child and consider any necessary injunctions to protect the child's well-being.

Judge Small discharged all previous parenting orders and ordered that the child live with the mother, granting her sole parental responsibility. The mother was permitted to relocate the child to Town G. While the mother retained sole decision-making power on major welfare issues, she was ordered to provide written notification to the applicant and second respondent within seven days of making such decisions. Detailed provisions were made for the child to spend time and communicate with both the applicant and the second respondent, including specific arrangements for school terms, holidays, birthdays, and electronic communication. The court also issued injunctions restraining the parties from criticising each other or discussing proceedings in the child's presence, and from allowing the child access to court documents. The mother was also directed to ensure the child received psychological assistance.

Orders

Orders of the court

All previous parenting orders in relation to the child [X] born 2006 (“[X]” or “the child”) are hereby discharged.

The child shall live with the mother and the mother shall have sole parental responsibility for the child.

The mother shall provide written information (meaning by post, email, text, or other electronic communication) to each of the Applicant and the Second Respondent within 7 days of making any major decision about [X]’s welfare, including, but not limited to decisions about the following:

· A change in [X]’s living arrangements

· A change in [X]’s school

· A decision in relation to surgery, including major dental surgery, proposed for [X]

· Any religious rite such as baptism or confirmation that [X] might be engaged in

But for the sake of clarity, the mother shall have the sole responsibility for making the final decision in all such cases.

The mother is permitted to relocate the residence of the child to Town G.

The child shall spend time and communicate with the Applicant:

(a) during school terms on the second, and, if applicable, the fifth weekend of each month from the conclusion of school or 3:30p.m. on Friday to 5:00 p.m. on Sunday;

(b) during school term holidays each year from the conclusion of school or 3:30 p.m. on the last day of the first and third school terms to 5:00 p.m. eight days later;

(c) during the long summer holidays each year for one period of two weeks by agreement between the parties, and failing agreement for the two weeks beginning at 4:00 p.m. on 27 December in 2018 – 2019 and in each alternate year thereafter, and for the two weeks concluding at 4:00 p.m. on the Thursday before the commencement of the next school year in 2019 – 2020 and in each alternate year thereafter;

(d) from 4:00 p.m. on Boxing Day to 4:00 p.m. on 27 December 2018 and in each third year thereafter;

(e) from 11:00 a.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2019 and in each third year thereafter;

(f) from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2020 and in each third year thereafter;

(g) by telephone, Skype, Facetime or other electronic means:

(i) at any time at the instigation of the child;

(ii) on the child’s birthday each year between 8:00 a.m. and 8:15a.m. at the instigation of the Applicant;

(iii) on the Applicant’s birthday each year between 8:00 a.m. and 8:15 a.m. at the instigation of the Applicant;

(iv) at other times at the instigation of the Applicant by agreement between the Applicant and the mother, and failing agreement, on each Wednesday when the child is not in his care between 7:00 p.m. and 7:30 p.m;

and for the purpose of all such calls, the mother shall ensure that the child has access to a charged and working telephone, tablet or computer, that she is available to make or take the call, and that she is afforded privacy for the call’s duration;

(h) At such other times as might be agreed between the mother and the Applicant from time to time.

Changeover for the purposes of the time set out in paragraphs 5(a) and (b) hereof shall take place at the child’s school at the commencement of time and at the home of the Applicant, or such other venue as might be agreed between the parties at the conclusion of time.

Changeover for all other times specified in paragraph 5 hereof shall take place at a venue agreed by the parties from time to time and failing agreement, in the car park of the McDonalds Restaurant at Town F.

The child shall spend time and communicate with the Second Respondent:

(a) during school terms on the fourth weekend of each month from the conclusion of school or 3:30 p.m. on Friday to 5:00 p.m. on Sunday;

(b) during school term holidays from the conclusion of school or 3:30 p.m. on the last day of the second school term to 5:00 p.m. eight days later;

(c) for one week during the long summer holidays each year by agreement between the mother and the Second Respondent, save that that time shall not impede or interfere with the time spent between the child and the Applicant as set out in paragraph 5 hereof;

(d) from 11:00 a.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each third year thereafter;

(e) from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2019 and in each third year thereafter;

(f) from 4:00 p.m. on Boxing Day to 2:00 p.m. on 27 December 2020 and in each third year thereafter;

(g) by telephone, Skype, Facetime or other electronic means:

(i) at any time at the instigation of the child;

(ii) on the child’s birthday each year between 8:30 a.m. and 8:45a.m. at the instigation of the Second Respondent;

(iii) on the Second Respondent’s birthday each year between 8:00 a.m. and 8:15 a.m. at the instigation of the Second Respondent;

(iv) at other times at the instigation of the Second Respondent by agreement between the Second Respondent and the mother, and failing agreement, on each Tuesday when the child is not in his care between 7:00 p.m. and 7:30 p.m.;

and for the purpose of all such calls, the mother shall ensure that the child has access to a charged and working telephone, tablet or other device, that she is available to make or take the call, and that she is afforded privacy for the call’s duration;

(h) At such other times as might be agreed between the mother and the Second Respondent from time to time, save that such time shall not interfere with the Applicant’s time with the child as set out in these orders without the consent of the Applicant having first been obtained in writing.

Changeover when the child spends time with the Second Respondent shall take place at a venue agreed by the mother and the Second Respondent from time to time.

10.

The mother shall ensure that the child attends upon a properly qualified child and adolescent psychologist or psychiatrist to assist her to come to terms with the consequences of these orders.

11.

The mother and the Applicant, and the mother and the Second Respondent, shall keep each other informed of any change in their address, telephone number, email address, or other means of contact, within 7 days of such change.

12.

The mother shall ensure that the child’s school makes available to the each of the Applicant and the Second Respondent, at their respective cost if any, all school reports, information about parent-teacher interviews and sporting or cultural events, and information about all prizes or awards won by the child, and the Applicant and the Second Respondent shall be at liberty to attend sporting or cultural events, and parent-teacher interviews, save that the Applicant shall attend parent-teacher interviews at a different time from the mother.

13.

The mother shall, within 24 hours of occurrence, inform each of the Applicant and the Second Respondent of any serious illness or injury to the child requiring hospitalisation or more than three days’ absence from school, and she shall authorise any treating medical or allied practitioners who are caring for the child to speak to each of the Applicant and the Second Respondent about the child’s treatment. If such illness or injury results in time not being spent between the child and the Applicant or the child and the Second Respondent as provided in these orders, the mother shall provide a medical certificate to them which states the specific nature of the illness or injury and the length of time the child will be unavailable to spend time with the Applicant or the Second Respondent as the case may be.

14.

The Applicant and the Second Respondent shall, as soon as possible after occurrence, inform the mother of any serious illness or injury to the child requiring hospitalisation or attention by a doctor, and they shall inform any treating medical or allied practitioners who are caring for the child that the child’s mother has sole parental responsibility for the child and that, save in the case of emergency, it is she to whom they should speak about the child’s treatment at first instance.

15.

The parties are hereby restrained by injunction from:

(a) criticising, insulting, belittling, or otherwise denigrating any other party or any member of any other party’s family or household in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;

(b) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain the effect of these parenting Orders to her, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;

(c) allowing the child to access, read or have read to her any portion of the Court’s Reasons for Judgment in this matter, or any document filed in these proceedings.

16.

The parties and the Independent Children’s Lawyer shall be at liberty provide a copy of these orders to the child’s school.

17.

The Order of Judge Phipps dated 3 June 2016 appointing the Independent Children’s Lawyer is hereby discharged.

18.

Otherwise, all extant Applications, save for the Contravention Application filed 5 February 2018, are hereby dismissed and removed from the list of pending cases kept by the Court.

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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