FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRELL & BLAKELEY | [2014] FCCA 1888 |
| Catchwords: FAMILY LAW – Parenting relocation – ability of mother to facilitate and encourage close and continuing relationship findings about false allegations of family violence made for the purposes of strategic advantage. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61DA, 64B, 65DAA,69ZT Evidence Act 1995 (Cth), s.97 |
| Cases cited: Chapman and Palmer (1978) FLC 90-510 Beach and Stemmler (1979) FLC 90-692 Champness & Hansen (2009) FLC 93-407 Marsden & Winch(No.3) FLC 93-407 Marsden & Winch(No.3) [2007] FamCA 1364 Collu & Rinaldo [2010] FamCAFA 53 Mazorski v Albright (2007) 37 Fam LR 518 Slater & Light [2011] FamCAFC 1 Goode & Goode [2006] FanCA 1346 Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 and 369 T & N [2001] FMCAfam 222 Starr & Duggan [2009] FamCAFC 115 AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Taylor v Barker (2008) 37 Fam LR 461 McCall v Clark (2009) FLC 93-405 Hepburn & Noble (2010) FLC 93-438 Cales & Cales (2010) FLC 93-459 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR MORRELL |
| Respondent: | MS BLAKELEY |
| File Number: | SYC 4645 of 2010 |
| Judgment of: | Judge Myers |
| Hearing dates: | 19 February 2013, 11 June 2013, 12 June 2013, 13 June 2013, 8 November 2013, 29 November 2013 and 12 February 2014 |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 22 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | Emery Partners |
| Counsel for the Respondent: | Ms Carty |
| Solicitors for the Respondent: | Peter Hamilton & Associates |
ORDERS
The parents shall have equal shared parental responsibility for the children. X (DOB: ((omitted) 2009) and Y (DOB: ((omitted 2012) ("the children").
Conditional upon the mother maintaining the children’s residence at a place within a radius of 50 kilometre of the (omitted) Post Office within 28 of the date of these orders:
(a)The children shall live with the mother.
(b)The children spend the time with the father as agreed between the parties but failing agreement as follows:
(i)Each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday and in the event that any weekend falls on a long weekend including Monday then the time the children spend with the father shall be extended until 6.00 pm on Monday or if a long weekend including Friday, the time shall be extended to commence at 6.00 pm Thursday;
(ii)From 6.00 pm each Tuesday until return to school, pre-school or the mother’s residence at 9.00 am on the following Wednesday;
(iii)For the first half of the shorter mid-year school holidays;
(iv)During the Christmas holidays.
(c)Until the child X commences school:
(i)For the first, third and fifth weeks of the Christmas holidays;
(ii)the first week shall commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on…
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- Morrell and Blakeley [2014] FCCA 1888
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CaseChat Overview and Summary
The court was required to determine the specific terms of shared parental responsibility, including the primary residence of the children, the schedule for time spent with each parent, and provisions for communication between the children and the non-resident parent. Further issues included arrangements for the children's education, including the payment of school fees, and financial orders related to the mother's potential relocation and the establishment of a new residence for the children. The court also had to consider specific provisions for the younger child, Y, until he reached a certain age.
Judge Myers made orders establishing equal shared parental responsibility. The children were to live with the mother, conditional on her maintaining residence within 50 kilometres of a specified post office. Detailed provisions were set out for the children's time with the father, including alternate weekends, mid-week time, and specific arrangements for school holidays, which varied depending on whether child X had commenced school. The orders also included provisions for communication, changeovers, and the father's financial responsibility for the children's education. In the event the mother did not relocate as stipulated, alternative residence and time arrangements with the father were ordered. The court also made specific orders regarding the mother's relocation costs and ongoing rental contributions, which the father had consented to.
Orders
Orders of the court
1.
The parents shall have equal shared parental responsibility for the children. X (DOB: ((omitted) 2009) and Y (DOB: ((omitted 2012) ("the children").
2.
Conditional upon the mother maintaining the children’s residence at a place within a radius of 50 kilometre of the (omitted) Post Office within 28 of the date of these orders:
(a) The children shall live with the mother.
(b) The children spend the time with the father as agreed between the parties but failing agreement as follows:
(i) Each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday and in the event that any weekend falls on a long weekend including Monday then the time the children spend with the father shall be extended until 6.00 pm on Monday or if a long weekend including Friday, the time shall be extended to commence at 6.00 pm Thursday;
(ii) From 6.00 pm each Tuesday until return to school, pre-school or the mother’s residence at 9.00 am on the following Wednesday;
(iii) For the first half of the shorter mid-year school holidays;
(iv) During the Christmas holidays.
(c) Until the child X commences school:
(i) For the first, third and fifth weeks of the Christmas holidays;
(ii) the first week shall commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on the same day the next week and the same commencement and conclusion days and times shall apply to the third and fifth weeks.
(d) Upon the child X commencing school:
(i) Half of the Christmas holidays being the first half in odd numbered years and the second half in even numbered years and for the purpose of this order Christmas holidays are deemed to commence at 9.00 am on the day after the last day of school term requiring student attendance and to conclude at 5.00 pm on the day before the first day of the next school term requiring student attendance and the expiry of the first half and commencement of the second half is deemed to occur at 9.00am on the day of the midpoint between the time of commencement and the time of conclusion of the school holiday period but if there is no mid-point day, then the first half shall have one day more than the second half.
(ii) In odd years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2013.
(iii) On the Father's Day weekend from 6.00 pm Friday to 6.00 pm Sunday.
(iv) For 4 hours on each of the children's birthdays being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
(v) For 4 hours on the father's birthday being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
3.
The children shall communicate with the father either by Skype or by telephone at all reasonable times and for this purpose the mother shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
4.
All changeovers other than at school, pre-school or the mother’s residence are to take place at (omitted) McDonalds by the mother or her nominee delivering/collecting the children to/from and the father or his nominee.
5.
The time the children spend with the father pursuant to these orders above is suspended as follows:
(a) On the weekend that contains Mother's Day from 5.00pm Friday until 5.00pm on Mother's Day;
(b) In even years between 5.00 pm Christmas Eve and 9.00 am Boxing Day commencing on 24 December 2014.
(c) For 4 hours on each of the children's birthdays from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
(d) For 4 hours on the mother's birthday from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
(e) And the children shall spend such time with the mother
6.
The time Y spends with the father pursuant to order 2 is suspended until 17 February 2015 when he turns 3 years of age and in substitution. Y shall spend time with the father as agreed between the parties but failing agreement as follows :
(a) Each Wednesday from 9 .00 am to 6.00 pm;
(b) Each Friday from 9.00 am to 6.00 pm;
(c) Each Saturday and Sunday on alternate weekends from 9.00 am to 6.00 pm;
(d) On the Saturday and the Sunday of the Father's Day weekend between 9.00 am and 5.00 pm.
(e) On Christmas Day 2013 between 9.00 am and 6.00 pm.
(f) For 4 hours on each of the children's birthdays being from 12noon until 4.00 pm;
(g) For 4 hours on the father's birthday from 12 noon until 4.00pm;
(h) Between 9.00 am and 6.00 pm on the days in school holidays that X spends with the father.
7.
In default of Order 2 with respect to the mother maintaining the children’s residence at a place within 50 kilometres of the (omitted) Post Office then:
(a) The children shall live with the father.
(b) The children shall spend time with the mother as agreed between the parties but failing agreement:
(i) On the fourth weekend during New South Wales school terms from Friday 6 .00 pm to Sunday 6.00 pm;
(ii) For the second half of school holidays except the Christmas holidays;
(iii) For the second, fourth and sixth weeks of the Christmas holidays;
(iv) In even years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2014.
8.
The children shall communicate with the mother by Skype or telephone at all reasonable times and for this purpose the father shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
9.
To implement the time the children spend with the mother the mother will collect the children from the father at (omitted) Airport at the commencement of the time and the father will collect the children from the mother at Brisbane Airport at the conclusion of the time with the father to pay for all of the children's air fares .
10.
The parties do all acts and things and sign all documents necessary to enable the children to attend and be educated at (omitted) Grammar School including the pre-school at (omitted) Grammar School conditional upon that the father being responsible for paying the school fees and all other costs associated or incidental to the children's education including school uniforms.
11.
Each party authorise the school authorities, teachers or any other person having responsibility for the children's school education or other curricular activity to communicate directly with each parent as if the parties had not separated and to record each parent as a person to be notified in cases of emergency and to provide to each parent copies of school reports and other reports relevant to the children's education and the execution of these Orders shall be deemed to be sufficient authority for the purpose of these orders.
12.
Each party keep the other party informed as to all medical, dental and other health related treatment being undertaken by the children and each party at all times be at liberty to communicate directly with the treating professionals without necessarily referring to the other party.
13.
Each party notify the other within a reasonable time of any illness or injury suffered by the children which requires medical treatment but if the child suffers a serious illness and/or injury, each party shall advise the other party as soon as practicable of any such serious illness or injury.
14.
The parties are restrained from referring to any person other than the parties as the father and the mother of the children and shall use their best endeavours to ensure that the children do not refer to any person other than the parties as "Dad", "Mum" or any equivalent or derivation thereof.
15.
The mother shall notify the father in writing within 7 days after the date of these orders to advise whether the mother is going to relocate from her current residence to live with the children within 50 kilometres from the (omitted) Post Office.
16.
In the event the mother notifies the father within 7 days after the date of these orders that she is going to relocate to live with the children (within a further 21 days) to a place within 50 kilometres from the (omitted) Post Office then:
(a) The mother shall forthwith do all acts and things and sign all documents necessary to establish a place of residence within 50 kilometres of (omitted) Post Office ("the residence").
17.
The father shall thereafter do all acts and things and sign all documents necessary to cause the following to occur:
(a) Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards the cost of relocating the children and her household contents to the residence.
(b) Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards any rental bond the mother is required to pay to secure a lease over the residence.
(c) If required by the mother to pay the mother within 48 hours of receiving notice from the mother a sum sufficient to fly the mother and the children from Brisbane to (omitted) NSW.
(d) Contribute up to $300 per week towards the rent the mother pays for the residence such amount to be paid directly to the landlord or landlords managing agent and to be varied each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for Sydney by comparison of the Consumer Price Index as it stands on either 31 March, 30 June, 30 September or 31 December (whichever month immediately precedes the date the mother first occupies the property) with the same index at the same date 12 months prior thereto.
18.
Pending the establishment of the residence pursuant to order 16 above the following orders shall apply:
(a) The children are to live with the mother and spend time with the father in (omitted) NSW on alternate weekends as follows:
(b) X between 2.00 pm Friday and 5.00 pm Sunday;
(c) Y between 2.00 pm and 5.00 pm Friday and from 9.00 am and 5.00 pm on Saturday and Sunday.
(d) The father is to pay the mother a sum sufficient for the cost of air travel for the children and the mother between Brisbane and (omitted) NSW. the cost of the mother hiring a car for her use in (omitted) NSW and for self-contained accommodation for the mother whilst she is in (omitted) NSW.
(e) The father is to collect the children from the mother from the Hungry Jacks restaurant at (omitted) Airport at the beginning of the time on Friday.
THE COURT NOTES THAT:
A) The father has in his application consented to make the payments for or towards the children’s accommodation and the mother as set out at orders 17(a) to 17(d) above.
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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