MORAN & KEYES - [2015] FCCA 2684

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORAN & KEYES

[2015] FCCA 2684

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – behaviour of mother’s partner.

Legislation:

Family Law Act 1975

PST & CPR [2006] FMCAfam 36
Re L (contact: -domestic violence) (2000) 2 FLR 334 at 338

Applicant:

MR MORAN

Respondent:

MS KEYES

File Number:

MLC 1086 of 2011

Judgment of:

Judge McGuire

Hearing dates:

21 – 23 September 2015

Date of Last Submission:

30 September 2015

Delivered at:

Melbourne

Delivered on:

13 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Applicant:

Septimus Jones & Lee

Counsel for the Respondent:

Ms M Agresta

Solicitors for the Respondent:

Guthrie & Associates

Counsel for the Independent Children's Lawyer:

Ms A Boymal

Solicitors for the Independent Children's Lawyer:

Kenna Teasdale Lawyers

ORDERS

All extant orders in respect of the child X born (omitted) 2009 (“X”) be discharged.
The applicant father and the respondent mother have equal shared parental responsibility of X.
X live with the father.
X spend time and communicate with the mother as follows:
(a)Each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday but if that Monday be a public holiday or student free day then such time to conclude at the commencement of school Tuesday;
(b)On each Wednesday evening in school term from the conclusion of school until 7.30pm or otherwise as agreed between the parties with the mother to return X to the father’s home;
(c)During the 2015/16 summer school holidays on a week about basis with the mother to spend the first week with X from 5.00pm on the day school finishes until 5.00pm on the day after the seventh consecutive night and each alternate week thereafter;
(d)For the first half of the 2017/2018 summer school holidays and each alternate year thereafter, and for the second half of the 2018/2019 summer school holidays and each alternate year thereafter with changeover to take place at 10.00am on the middle day, with the school holiday period to be calculated from the conclusion of school on the last day of term until the commencement of school on the first day of the new school term;
(e)For one half of each school term holidays as agreed between the parties but failing agreement then for the first half of such holidays;
(f)On X’s birthday and the mother’s birthday if X is not otherwise in the mother’s care as agreed between the parties in writing and in the absence of agreement;
(i)If the birthday falls on a school day, from the conclusion of school or 3.30pm until 6.30pm;
(ii)If the birthday falls on a non-school day, from 10.00am until 7.00pm on the mother’s birthday and from 10.00am until 2.00pm on X’s birthday;
(g)If X is not already in the mother’s care then from 5.00pm on the day preceding Mother’s Day to 5.00pm Mother’s Day;
(h)On (omitted), (omitted) and (omitted) in 2016 and each alternate year thereafter unless otherwise agreed in writing as…

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 MORAN & KEYES

Details

AGLC: Moran and Keyes [2015] FCCA 2684
Case: [2015] FCCA 2684
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the matter of *Moran & Keyes*, heard before Judge McGuire, the court was tasked with determining parenting arrangements for a child, X. The dispute concerned the allocation of parental responsibility, living arrangements, and time spent between X and each of his parents, as well as orders relating to international travel and contact with third parties.

The court was required to determine the extent of equal shared parental responsibility, where X would live, and the specific times X would spend with each parent, including during school holidays and on significant dates. Further issues included the facilitation of communication between X and the non-resident parent, the conditions under which X could be removed from Australia, and the circumstances under which X could have contact with a Mr J and any person under the influence of illegal drugs. The court also considered the discharge of existing orders and the appointment of an Independent Children's Lawyer.

The court ordered the discharge of all extant orders concerning X and established equal shared parental responsibility between the applicant father and the respondent mother. X was ordered to live with the father, with detailed provisions outlining X's time with the mother, including alternate weekends, Wednesday evenings, school holidays, birthdays, and other specified days. The court also made orders for X to spend time with the father on specific occasions, including birthdays and Father's Day. Provisions were made for changeovers, communication between X and the non-resident parent, and the facilitation of obtaining an Australian passport for X. Crucially, the court issued orders restraining both parents from removing X from the Commonwealth of Australia without joint consent or a court order, and requested the Australian Federal Police to place X on a Watch List until a specified date. The mother was also restrained from bringing X into contact with Mr J until certain conditions were met, and from bringing X into contact with any person reasonably believed to be under the influence of or in possession of illegal drugs. The order appointing the Independent Children's Lawyer was discharged.

Orders

Orders of the court

All extant orders in respect of the child X born (omitted) 2009 (“X”) be discharged.

The applicant father and the respondent mother have equal shared parental responsibility of X.

X live with the father.

X spend time and communicate with the mother as follows:

(a) Each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday but if that Monday be a public holiday or student free day then such time to conclude at the commencement of school Tuesday;

(b) On each Wednesday evening in school term from the conclusion of school until 7.30pm or otherwise as agreed between the parties with the mother to return X to the father’s home;

(c) During the 2015/16 summer school holidays on a week about basis with the mother to spend the first week with X from 5.00pm on the day school finishes until 5.00pm on the day after the seventh consecutive night and each alternate week thereafter;

(d) For the first half of the 2017/2018 summer school holidays and each alternate year thereafter, and for the second half of the 2018/2019 summer school holidays and each alternate year thereafter with changeover to take place at 10.00am on the middle day, with the school holiday period to be calculated from the conclusion of school on the last day of term until the commencement of school on the first day of the new school term;

(e) For one half of each school term holidays as agreed between the parties but failing agreement then for the first half of such holidays;

(f) On X’s birthday and the mother’s birthday if X is not otherwise in the mother’s care as agreed between the parties in writing and in the absence of agreement;

(i) If the birthday falls on a school day, from the conclusion of school or 3.30pm until 6.30pm;

(ii) If the birthday falls on a non-school day, from 10.00am until 7.00pm on the mother’s birthday and from 10.00am until 2.00pm on X’s birthday;

(g) If X is not already in the mother’s care then from 5.00pm on the day preceding Mother’s Day to 5.00pm Mother’s Day;

(h) On (omitted), (omitted) and (omitted) in 2016 and each alternate year thereafter unless otherwise agreed in writing as follows:

(i) If the celebration falls on a school day then from 3.30pm or the conclusion of school on the day of each celebration until 9.00am or the commencement of school the next day; or

(ii) If the celebration falls on a non-school day, from 10.00am on the day of each celebration until 10.00am the next day;

(i) Such further and other times as agreed between the parties and noting that weekend and Wednesday time for X with the mother be suspended during school holidays provided that X’s time with the mother resume at the beginning of each new school term as if it had not been interrupted.

Provided that X spend time with the father:

(a) On X’s birthday and the father’s birthday if X is not otherwise in the father’s care as agreed between the parties in writing and in the absence of agreement as per 4(f)(ii);

(b) From 5.00pm on the day preceding Father’s Day until 5.00pm Father’s Day each year X is not already in the father’s care;

(c) On (omitted), (omitted) and (omitted) in 2015 and each alternate year thereafter, unless otherwise agreed in writing as follows:

(i) If the celebration falls on a school day, from 3.30pm or the conclusion of school on the day of each celebration until 9.00am or the commencement of school the next day; or

(ii) If the celebration falls on a non-school day, from 10.00am on the day of the celebration until 10.00am the next day;

(d) Such further and other times as agreed between the parties.

For the purposes of changeovers that do not take place at X’s school, the parent commencing the care of X shall collect him from the residence of the other parent unless otherwise agreed in writing and the mother be restrained from permitting Mr J to attend at changeover.

The mother and father facilitate telephone/facetime/skype communication between X and the party with whom he is not spending time every second day at times that are appropriate to X’s routine and to be agreed between the parties, and that the father be at liberty to provide X with a mobile telephone to enable him to telephone X directly.

Each party be permitted to remove X from the Commonwealth of Australia in each alternate year during the summer holidays consistent with these orders being for periods of no longer than three (3) weeks unless otherwise agreed in writing and for the purpose only of visiting countries which are signatories to the Hague Convention on Child Abduction and provided that each gives the other not less than forty-two (42) days prior notice of intention to do so including with that notice the provision of copies of pre-paid return tickets and an itinerary for the travel provided also that should the other parent intend to exercise time overseas with X during the same holidays then the parents each be responsible for one half of the cost of X’s return airline ticket and this be without prejudice to that parent’s right of travel with X in the following summer holidays with the mother being entitled to travel with X in the 2016/17 school holidays and in each alternate year thereafter and for these purposes each parent shall provide written consent for the removal of X from the Commonwealth of Australia not later than 10 December in each relevant year.

The parties MR MORAN born (omitted) 1978 and MS KEYES born (omitted) 1975 their servants and agents be and are hereby restrained from removing the child X born (omitted) 2009 from the Commonwealth of Australia without the joint written consent of the other party, or by order of the Court.

10.

The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders until 29 May 2025.

11.

The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR MORAN born (omitted) 1978 and MS KEYES born (omitted) 1975 from removing the said child X born (omitted) 2009 from the Commonwealth of Australia.

12.

Upon expiration of the period referred to in Order 10 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

13.

The mother be restrained from bringing the child into contact with Mr J (including but not limited to verbal and physical contact or communicating through the mother (including cards, gifts and messages) and for the purposes of this order the mother will ensure that the child remains at least 500 metres from Mr J at any given time) until such time as the following has occurred:

(a) Mr J undertake a course of drug and alcohol counselling, completing a minimum of 12 sessions, and a certificate of completion be provided to the father’s solicitor and he complies with the reasonable directions of such counsellor; and

(b) Mr J has submitted 6 consecutive clean supervised drug urine screens within the normal creatinine levels to the father’s solicitor within 24 hours of receipt of request from the father’s solicitor such to be at the expense of Mr J.

and thereafter the mother be in attendance at all times the child is with Mr J.

14.

The mother be and is hereby restrained from bringing X into contact with any person she reasonably believes to be under the influence of or in possession of any illegal drug.

15.

The mother be restrained from delegating any of her responsibilities of parenting to Mr J.

16.

Both parties prudently do all acts and things and sign all necessary documents to obtain an Australian Passport for X with the father to hold the passport unless required by the mother pursuant to the terms of these orders.

17.

That the order appointing the Independent Children’s Lawyer dated 1 April 2014 be discharged.

18.

Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.