Mortensen and Millan - [2018] FCCA 904

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTENSEN & MILLAN

[2018] FCCA 904

Catchwords:
FAMILY LAW – Parenting application for two children aged nine and seven – parental responsibility – the time the father spends with the children and should the time be supervised – cultural issues – parents from a (nationality omitted) background – best interests of the children.

Legislation:

Family Law Act 1975, ss.60CC, 60CA, 60B, 61DA, 65 DAA, 68B

Cases cited:
Hungerford & Tank [2007]FamCA 637
Mazorski & Albright (2008) 37FamLR 518
Rice & Asplund (1979)FLC 90-725

Moose & Moose [2008] FamCAFC 108
Slater & Light [2013] FamCAFC 4 (5 February 2013)

Applicant:

MS MORTENSEN

Respondent:

MR MILLAN

File Number:

NCC 1647 of 2012

Judgment of:

Judge Costigan

Hearing date:

8 February 2018

Date of Last Submission:

9 February 2018

Delivered at:

Newcastle

Delivered on:

27 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Mueller

Solicitors for the Applicant:

Jennifer Blundell & Associates

Solicitors for the Respondent:

Self-Represented

ORDERS

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children [X] born 2009 and [Y] born 2011 (‘the children’).
That the children live with the mother.
That the children spend time with the father :
(a)On the last Saturday of each calendar month from 10am until 4pm;
(b)On Father’s Day from 10am to 4pm;
(c)On Christmas Day from 10am to 4pm; and
(d)At any other times and on any other conditions as the parties may agree from time to time.
That the children be delivered to and returned at the end of each contact period to a contact centre or a venue nominated by the mother.
The mother shall keep the father informed of the names and contact details of any medical practitioner treating the children, and contact the father as soon as practicable upon the happening of any of the following:
(a)The children or either of them becoming seriously ill;
(b)The children or either of them becoming hospitalised;
(c)The children or either of them being involved in an accident; and
(d)The children or either of them becoming involved in any event to which police or any other emergency services are called.
The father is authorised (and a copy of these orders shall be sufficient authority):
(a)To receive such notices newsletters, photographs, reports and other document or information normally provided to parents from any school which the children may attend from time to time; and
(b)To receive such medical reports, test result medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.
Each party is restrained from:
(a)denigrating the other or any member of their family in front of or in the presence of the children, or permitting any other person to do so;
(b)discussing with the children parental issues, court proceedings and/or questioning the children with respect to the other parent’s personal affairs; and
(c)bringing the children or either of them into contact with Mr E.
Subject to…

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 Mortensen and Millan

Details

AGLC: Mortensen and Millan [2018] FCCA 904
Case: [2018] FCCA 904
Decision Date: 27 April 2018

CaseChat Overview and Summary

In the matter of *Mortensen and Millan*, heard by Judge Costigan, the dispute concerned parenting orders for two children, [X] born in 2009 and [Y] born in 2011. The proceedings sought to establish new arrangements for the children's care and contact with their parents.

The court was required to determine the primary caregiver for the children, the extent of the father's time with the children, and the conditions under which such contact would occur. Further issues included the mother's ability to travel internationally with the children, the father's right to receive information regarding the children's schooling and medical care, and prohibitions on the parties' conduct in the children's presence.

Judge Costigan ordered the discharge of all previous parenting orders. The mother was granted sole parental responsibility and the children were ordered to live with her. The father was granted specific, limited time with the children, including on the last Saturday of each month, Father's Day, and Christmas Day, with all contact to occur at a supervised venue. The mother was permitted to take the children on holidays abroad with significant notice and itinerary provision to the father, though travel to a specific country was restricted until the younger child turned 12. Both parties were restrained from denigrating each other or discussing parental issues with the children, and the father was prohibited from contact with a Mr E. The father was authorised to receive educational and medical information concerning the children.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the mother have sole parental responsibility for the children [X] born 2009 and [Y] born 2011 (‘the children’).

That the children live with the mother.

That the children spend time with the father :

(a) On the last Saturday of each calendar month from 10am until 4pm;

(b) On Father’s Day from 10am to 4pm;

(d) At any other times and on any other conditions as the parties may agree from time to time.

That the children be delivered to and returned at the end of each contact period to a contact centre or a venue nominated by the mother.

The mother shall keep the father informed of the names and contact details of any medical practitioner treating the children, and contact the father as soon as practicable upon the happening of any of the following:

(a) The children or either of them becoming seriously ill;

(b) The children or either of them becoming hospitalised;

(d) The children or either of them becoming involved in any event to which police or any other emergency services are called.

The father is authorised (and a copy of these orders shall be sufficient authority):

(a) To receive such notices newsletters, photographs, reports and other document or information normally provided to parents from any school which the children may attend from time to time; and

(b) To receive such medical reports, test result medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.

Each party is restrained from:

(a) denigrating the other or any member of their family in front of or in the presence of the children, or permitting any other person to do so;

(b) discussing with the children parental issues, court proceedings and/or questioning the children with respect to the other parent’s personal affairs; and

Subject to Order 10 below the mother is permitted to take the children out of Australia for holidays and for other short periods of time. In relation to taking the children out of Australia the mother will:

(a) give the father as much notification as possible of the intention to take the children out of Australia and in any event will not give less than 60 days written notice of such intention; and

(b) give the father an accurate itinerary to include departure and return dates on which they will arrive and depart each country and a telephone number and address at which the children can be contacted.

10.

The Mother is authorised to take all steps and sign all documents necessary to procure valid passports for the children and each of them.

11.

Except with the written consent of the father or leave of the Court the mother must not cause or permit either of the children to travel to (country omitted) until the child [Y] attains the age of 12 years (2023).

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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