Moray and Schuler - [2018] FCCA 3931

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORAY & SCHULER

[2018] FCCA 3931

Catchwords:
FAMILY LAW – Interim relocation – mother relocated with children to Sydney from Melbourne – maternal grandmother is terminally ill – mutual allegations of abuse against both parents – allegation of risk against the mother by the father.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 65DAA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230
Parks & Farmer [2012] FamCAFC 12

Applicant:

MR MORAY

Respondent:

MS SCHULER

File Number:

MLC 12377 of 2018

Judgment of:

Judge Harland

Hearing date:

3 December 2018

Date of Last Submission:

3 December 2018

Delivered at:

Melbourne

Delivered on:

6 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Glezer Lanteri & Associates

Counsel for the Respondent:

Ms Brookes

Solicitors for the Respondent:

M & K Lawyers

ORDERS

The mother be granted leave to rely on her affidavit sworn 26 November 2018.
The matter be adjourned to 23 April 2019 at 10.00am for final hearing (with an estimated hearing time of two days).
The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 14 days before the final hearing.
Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge a Case Outline document as follows:
Parenting
(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(d)whether the presumption of equal shared parental responsibility applies (s.61DA),
(e)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(f)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
(g)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(h)any other matters relevant to the decision; and
(i)a statement of the precise orders sought
Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.
Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.
Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.
There be…

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 Moray and Schuler

Details

AGLC: Moray and Schuler [2018] FCCA 3931
Case: [2018] FCCA 3931
Decision Date: 6 December 2018

CaseChat Overview and Summary

This matter concerned parenting orders between the mother and the father, with Judge Harland presiding in the Federal Circuit Court of Australia. The dispute involved the arrangements for the children, including their living arrangements, time spent with each parent, and communication. The court was required to make interim parenting orders by consent and set directions for the final hearing of the matter.

The court was asked to determine the terms of interim parenting orders, which were to be made by consent of the parties. These orders addressed issues such as equal shared parental responsibility, the children’s residence with the mother, the father’s time with the children, travel arrangements and associated costs, communication between parents and children, and the involvement of a psychologist for assessment and report preparation. The court also needed to establish a timetable and procedural requirements for the final hearing, including the filing of affidavits, the provision of case outlines, and the notification of expert witnesses.

Judge Harland made interim parenting orders by consent, reflecting the agreement of the parties on the immediate arrangements for the children. These orders included provisions for equal shared parental responsibility, the children living with the mother, and a detailed schedule for the father's time with the children, including specific handover locations and procedures. The court also ordered the father to disburse a sum of money to each party for travel expenses and stipulated that these sums were not to be treated as allocated for future property adjustments. Directions were also issued for the final hearing, including requirements for affidavit evidence, case outlines, and expert witness procedures, with the matter adjourned for a final hearing.

Orders

Orders of the court

The mother be granted leave to rely on her affidavit sworn 26 November 2018.

The matter be adjourned to 23 April 2019 at 10.00am for final hearing (with an estimated hearing time of two days).

The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 14 days before the final hearing.

Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge a Case Outline document as follows:

Parenting

(a) a list of the documents to be relied upon;

(b) a brief chronology;

(d) whether the presumption of equal shared parental responsibility applies (s.61DA),

(e) the considerations relevant to equal time and substantial and significant time (s.65DAA);

(f) each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(g) other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(h) any other matters relevant to the decision; and

(i) a statement of the precise orders sought

Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

10.

There be interim parenting orders, in terms of the Minute of Consent Orders dated 6 December 2018 (“the Minute”) and:

(a) The minute be placed on the Court file;

(b) The solicitors for the applicant engross the Minute and deliver a clean, certified, electronic copy of the Minute (“the copy”) to the Chambers of Judge Harland by way of email to associate.judgeharland@federalcircuitcourt.gov.au within seven days; and

MINUTE OF ORDERS

The parties have equal shared parental responsibility for the children [X] born …2015 and [Y] born …2017 (“the children”).

The children live with the Wife.

The Wife be permitted to reside with the children in Metropolitan Sydney until further Order.

That until further Order the Husband spend time with the children as follows:

(4.1) commencing 2.00pm on Thursday, 13 December 2018 and concluding 12.00pm on Monday, 17 December 2018 with the handover to occur at:

(i) …Coffee Shop near the baggage claim in Domestic Arrivals, Tullamarine Airport, at the commencement (“Melbourne Arrivals”);

(ii) the Virgin check-in area near domestic departures at Tullamarine Airport, at the conclusion (“Melbourne Departures”);

(4.2) commencing 10.00am on Tuesday, 25 December 2018 and concluding 2.00pm on Tuesday, 1 January 2019 with handovers to occur at:

(i) Sydney Airport in Mascot near the Virgin Airlines departure check in counter (“Sydney Departures”) at the commencement; and

(ii) Sydney Airport in Mascot, near the Virgin Airlines Arrivals Baggage Claim area (“Sydney Arrivals”);

(4.3) commencing 2.00pm Thursday, 10 January 2019 and concluding at 12.00pm on Monday, 14 January 2019 with handovers to occur in Melbourne at Melbourne Arrivals and Melbourne Departures, respectively;

(4.4) commencing 2.00pm Thursday, 24 January 2019 and conclude 12.00pm Thursday, 31 January 2019 with handovers to occur in NSW at Sydney Departures and Sydney Arrivals, respectively;

(4.5) commencing 11.00am Thursday, 7 February 2019 and concluding 2.00pm Monday, 11 February 2018 with handovers to be in Melbourne as follows:

(i) at Suburb A McDonalds restaurant at the commencement; and

(ii) at Melbourne Departures at the conclusion;

(4.6) commencing 12.00pm Friday, 22 February 2019 and concluding 2.00pm on Tuesday, 26 February 2018 with handovers to be in Sydney, NSW as follows:

(i) McDonalds restaurant at Suburb B, NSW at the commencement, unless otherwise agreed in writing between the parties; and

(ii) at Suburb B the conclusion of such time, unless otherwise agreed in writing between the parties;

AND every second fortnight thereafter, until further Order;

(4.7) commencing 2.00pm Friday, 8 March 2019 and concluding 12.00pm Tuesday, 12 March 2019 with handovers to be in Melbourne as follows:

(i) at Melbourne Arrivals at the commencement; and

(ii) at Melbourne Departures at the conclusion,

AND every second fortnight thereafter, until further Order;

(4.8) at such other times as agreed between the parties in writing.

IT IS ORDERED BY CONSENT THAT:

For the purposes of Order 4 herein:

(5.1) the parties must purchase the necessary flights for themselves and the children to facilitate delivering the children to the other party in accordance with these Orders (“flights”);

(5.2) the parties must provide written evidence to each other of any flights purchased for such purpose no later than 72 hours prior to departure, unless otherwise agreed in writing;

(5.3) the parties must SMS each other upon take-off and arrival (as applicable) with an estimated time for handover at the relevant location pursuant to these Orders;

(5.4) the parties must use their best endeavours to arrange flights to comply with these Orders, however, they must also allow for reasonable flexibility as to handover times having regard to matters of practicability including, but not limited to, flight availability, flight change/delay, illness and matters beyond their control;

(5.5) if the children are unable to undertaken return travel to the Wife and/or spend time with the Husband by reason of illness of one or both of them, or the parties, the relevant party must provide a Medical Certificate and make-up time to the other party.

For the purposes of paying for flights and/or accommodation and necessary travel expenses of the parties and the children pursuant to these Orders, the Husband must within 72 hours disburse the sum of $20,000 to each party (from monies held in the children’s names under his control) on the following basis:

(6.1) such sums shall not be treated as allocated to either party for the purposes of any future property adjustment under Section 79;

(6.2) such sums shall not be deemed characterised for the purposes of any future property or financial claims either party has against the other,

AND IT IS NOTED the parties are likely to amend their Applications before the Court to include property/financial matters and, if so, the sums referred to herein are to be allocated and characterised by the Trial Judge, unless otherwise agreed.

The parties each be at liberty to have FaceTime communication with the children when they are in the care of the other party as follows:

(7.1) each Tuesday commencing 5.00pm and concluding at 5.30pm, unless otherwise agreed;

(7.2) each Thursday commencing 5.00pm and concluding at 5.30pm, unless otherwise agreed;

SAVE in the event that such party has been or will otherwise be spending time with the children on that day.

The parties must attend with the children upon Mr K, psychologist, on 6 February 2019 (and/or such other times or date as directed by him) for assessment and to facilitate preparation of a private Family Report on the following basis:

(8.1) the cost of the report be paid from monies held in the children’s names and the Husband to cause such payment to be made upon request;

(8.2) the parties must each provide Mr K with copies of material filed by them in these proceedings and the Husband provide any Court Orders by no later than 14 days prior to appointments, or as otherwise requested by Mr K;

(8.3) that Mr K be at liberty to inspect any subpoenaed material.

That in the event that either party cannot personally attend handover, the person facilitating handover on their behalf must be a person who is agreed upon by both parties in writing, in advance of changeover AND IT IS NOTED this Order does not preclude a party having another person of their choosing present at handover.

10.

The children be permitted to have liberal communication by telephone or FaceTime at their request with the parent they are not with, and the parties facilitate such communication.

11.

That either party notify the other party as soon as practicable of any accident or illness requiring any of the children to have medical treatment, other than treatment of a minor or routine nature, with full details of the accident or illness and relevant medical practitioner.

12.

That each party:

(12.1) comply with all reasonable treatment strategies as recommended by the children’s treating medical practitioners; and

(12.2) inform the other party of the children’s appointments and authorise all treating medical practitioners to provide full information concerning the children to the other party;

13.

That each party keep the other informed of their current contact phone number, email address and home address (whether permanent or temporary), including during holiday contact periods.

14.

That without any admission, the parties, their servants and agents be and are hereby restrained from:

(14.1) making derogatory or denigrating comments about the other or their friends or family to the children (or in the presence or hearing) or allowing the children to remain in the presence of any person making such derogatory or denigrating comments;

(14.2) discussing these proceedings with the children or in their presence or hearing or allowing the children to remain in the presence of anyone discussing these proceedings.

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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