Milburn and Milburn - [2017] FamCA 490

FAMILY COURT OF AUSTRALIA

MILBURN & MILBURN

[2017] FamCA 490

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate from Australia to the United Kingdom with the children – Where father opposes relocation and seeks orders that children spend equal time with parents in Australia - Consideration of s60CC – Where it is reasonably practicable for mother to remain living in Australia – Where it was not reasonably practicable for father to relocate to or spend time in United Kingdom due to his employment – Where it was found that mother’s parenting capacity would not materially improve if mother permitted to relocate - Finding that relocation would impair meaningful relationship between children and father – Where benefits of a meaningful relationship between children and father outweigh the benefits of relocation – No relocation order made - Where presumption of equal shared parental responsibility applies – Finding that equal time is not in children’s best interests – Where orders are made for children to live with mother and spend significant and substantial time with father

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1

Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

APPLICANT:

Ms Milburn

RESPONDENT:

Mr Milburn

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

244

2015

DATE DELIVERED:

13 July 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

10, 11 and 12 May 2017

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Slade-Jones

SOLICITORS FOR THE RESPONDENT:

Bassano Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

Prior Orders:

All previous parenting orders be forthwith discharged.

Parental responsibility and related orders:

The parents have equal shared parental responsibility for the major long-term issues of the children A (born … 2008) and M (born … 2010).
In the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:
(a)the parents will consult with each other in relation to any major long-term issues for the children that may arise. The consultation is to occur in writing if a parent requests it;
(b)the parents will act reasonably and will use their best endeavours to each agreement;
(c)the parents will attend family dispute resolution in the event that they are unable to reach agreement.
These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.
These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s medical condition, treatment…

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 Milburn and Milburn

Details

AGLC: Milburn and Milburn [2017] FamCA 490
Case: [2017] FamCA 490
Decision Date: 13 July 2017

CaseChat Overview and Summary

This case involved parenting orders made by Tree J concerning the children A and M. The primary dispute revolved around the arrangements for the children's living arrangements, time spent with each parent, and communication between the parents. The court was required to discharge all previous parenting orders and establish new arrangements that addressed parental responsibility, the children's schooling and medical information, and their living arrangements during school terms and holidays.

The court was tasked with determining the extent of equal shared parental responsibility for major long-term issues, the practical implementation of this responsibility through consultation and dispute resolution, and the specific schedules for the children's time with each parent. This included detailed provisions for school terms, various school holiday periods (end of terms 1, 2, and 3, and Christmas holidays), and special occasions such as birthdays and Mother's Day/Father's Day. The court also needed to address communication protocols between the parents, including provisions for overseas travel, passport arrangements, and extra-curricular activities.

Tree J ordered that the parents have equal shared parental responsibility for the children's major long-term issues, requiring them to consult in writing if requested, act reasonably, and attend family dispute resolution if agreement could not be reached. The orders detailed specific living arrangements for the children during school terms, alternating weeks with the father, and outlined a complex schedule for school holidays, including provisions for overseas travel by the mother and alternative care arrangements for the father. The court also mandated communication protocols, including parental communication by email or SMS, and established specific arrangements for special occasions and children's birthdays. Furthermore, restraints were placed on parents regarding negative comments about each other in the children's presence and aggressive behaviour at changeovers. The Independent Children's Lawyer was discharged upon the expiration of the appeal period or determination of any appeal, and all other extant applications were dismissed.

Orders

Orders of the court

Prior Orders:

All previous parenting orders be forthwith discharged.

Parental responsibility and related orders:

The parents have equal shared parental responsibility for the major long-term issues of the children A (born … 2008) and M (born … 2010).

In the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:

(a) the parents will consult with each other in relation to any major long-term issues for the children that may arise. The consultation is to occur in writing if a parent requests it;

(b) the parents will act reasonably and will use their best endeavours to each agreement;

These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.

These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of medical records and reports.

Each parent will ensure that a certified copy of these orders is provided to:

(a) any school/s attended by the children;

(b) the children’s usual General Practitioner.

The parents are to keep each other informed of their respective contact addresses, telephone numbers, mobile telephone numbers or e-mail addresses and notify the other within forty-eight (48) hours to any changes to same.

Children’s living arrangements during school terms:

During school terms, the children live with the mother and spend time with the father each alternate week from after school on Wednesday until the commencement of school on Monday morning, save that if Monday is a public holiday or student free day, until the commencement of school on Tuesday.

End of term 1 , 2 and term 3 school holiday periods:

During the end of term 1 and end of term 3 school holiday periods:

(a) in even numbered years, the children will spend the first half of the holiday period with the mother and the second half with the father;

(b) in odd numbered years, the children will spend the first half of the holiday period with the father and the second half with the mother.

10.

For the purposes of paragraph 9 of these orders:

(a) the end of term 1, 2 and term 3 school holiday periods are deemed to commence at the conclusion of school on the last day of term 1, 2 or term 3 respectively, that the children are required to physically attend at school;

(b) the mid-point of the end of term 1 , 2 and term 3 holidays is deemed to be 6pm on the middle Saturday of the holidays;

(c) if the father is not available to spend one-half of the school holiday period with the children and would require alternative care for the children such as Outside School Hours Care, then:

(i) the children will spend that time with their mother, except for every second weekend from 3.00pm Thursday until 8.00am Monday which the children will spend with their father.

Christmas school holiday periods:

11.

If the mother intends travelling overseas with the children, she shall give the father written notice on or before 1 November each year, then the following shall apply:

(a) in even numbered years, the children will spend time with the father for the first and last weeks of the school holiday period, excluding Christmas Day. The children will otherwise spend time with the mother for the balance of the school holiday period;

(b) in odd numbered years, the children will spend time with the father from after school on the last day of term until 9am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.

12.

If the mother does not give such notice on or before 1 November, then the following shall apply:

(a) the children shall spend week about with each parent with the changeover to occur at 6:00pm each Saturday;

(b) if the father is not available to spend one-half of the school holiday period with the children and would require alternative care for the children such as Outside School Hours Care, then:

(i) the children will spend that time with their mother, except for every second weekend from 3.00pm Thursday until 8.00am Monday which the children will spend with their father.

(c) notwithstanding above, the children shall spend from 11.00am Christmas Eve to 11.00am Christmas Day with the father and 11.00am Christmas Day to 11.00am Boxing Day with the mother in even numbered years and from 11.00am Christmas Eve to 11.00am Christmas Day with the mother and 11.00am Christmas Day to 11.00am Boxing Day with the father in odd numbered years.

Children’s living arrangements on special occasions:

13.

If pursuant to these orders the mother would not have the children on the Mother’s Day weekend, then the children will spend Mother’s Day with the mother, from 9am on Mother’s Day until commencement of school Monday.

14.

If pursuant to these orders the father would not have the children on the Father’s Day weekend, then the children will spend Father’s Day with the father, from 9am on Father’s Day until commencement of school Monday.

15.

If pursuant to these orders the father would not spend time with the children on the father’s birthday, then the children will spend time with the father on his birthday:

(a) if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);

(b) if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).

16.

If pursuant to these orders the mother would not spend time with the children on the mother’s birthday, then the children will spend time with the mother on her birthday:

(a) if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);

(b) if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).

17.

If pursuant to these orders a parent would not spend time with the children on the children’s birthdays, then the children will spend time with that parent on the child’s birthday:

(a) if a school day, then from after school until 7pm;

(b) if a non-school day, then from 1pm until 7pm.

(NOTING that the both children’s birthdays fall on the same date).

18.

The children will communicate with the parents by telephone (or by other forms of electronic communication if available) as follows:

(a) the parent who has the children in their care is to provide the children with the use of a telephone so that the children can speak with the other parent on up to two (2) occasions per week for no longer than fifteen (15) minutes duration each child.

Parents’ Communication:

19.

The parents will communicate by email or SMS, except in the case of an emergency.

20.

The mother and father shall:

(a) do all necessary acts and things to attend with B Group or Ms C (with the mother choosing which service) to commence assistance in parenting communication and attend such sessions as and when directed by the chosen service provider (“Service Provider”); and

(b) attend such other appropriate course or program as suggested or directed by the above chosen Service Provider.

Changeovers:

21.

That changeovers for the children are to occur at:

(a) the children’s schools whenever changeovers are at the commencement or conclusion of school; or

(b) in any other case, at some other public place in thTown E D area as agreed in writing.

Restraints:

22.

Whilst in the presence or hearing of the children, the parents are restrained from speaking, or allowing the children to remain in the presence of someone else who is speaking, in a negative, offensive, or disrespectful manner towards:

(a) the other parent or a member of his/her family; or

(b) the other parent’s partner or a member of his/her family.

23.

At changeovers, the parents are restrained from behaving in an aggressive, confrontational or argumentative way towards:

(a) the other parent; or

(b) any other person who is in the company of the other parent.

24.

The parents are restrained from removing the children, or attempting to remove the children, from the Commonwealth of Australia otherwise than in accordance with paragraphs 26 and 27 of these orders.

Overseas travel with the children:

25.

Each parent may travel overseas with the children during times that that parent has the children pursuant to these orders, or during such other times that the parties may agree to in writing.

26.

For the purposes of overseas travel with the children:

(a) the travelling parent will meet the costs of and incidental to such travel personally;

(b) the travelling parent is to provide the other party with a copy of the children’s itinerary including departure dates and return dates prior to the children’s departure;

(c) the travelling parent will keep the other party advised as to all contact details including telephone numbers, addresses and e-mail addresses during such travel;

(d) during any absence from Australia that the travelling parent will be responsible for ensuring the children have telephone/Skype contact with the other party no less than twice per week at the cost of the travelling parent.

Passports for the children:

27.

That the parents ensure that the children have valid passports at all times, with both parents to complete all necessary application forms and the costs of same to be shared equally.

28.

That the children’s passports be held at the Family Law Registry in Cairns, or at some other institution as agreed in writing, with such passports to be:

(a) released to the travelling parent no earlier than seven (7) days before the commencement of travel;

(b) returned by the travelling parent to the Family Law Registry in Cairns, or at the other institution as agreed in writing, no later than seven (7) days after the children’s return to Town D.

Extra-curricular activities for the children:

29.

The parties shall share equally the cost of extra-curricular activities.

Other orders

30.

The Independent Children’s Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

31.

Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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