Mullins and Vass - [2017] FCCA 538

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLINS & VASS

[2017] FCCA 538

Catchwords:
FAMILY LAW – Parenting – 6 year old child – high level of parental conflict – parental responsibility – child to live with mother – child to spend time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Janssen & Janssen (No.2) [2016] FamCA 796
Johnson & Page (2007) FamCA 1235
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Richardson & Brown [2011] FamCA 662
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Starr & Duggan [2009] FamCAFC 115

Applicant:

MR MULLINS

Respondent:

MS VASS

File Number:

PAC 2256 of 2016

Judgment of:

Judge Obradovic

Hearing date:

7 December 2016

Date of Last Submission:

7 December 2016

Delivered at:

Parramatta

Delivered on:

27 March 2017

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondent:

In person

ORDERS

That the mother have sole parental responsibility for the child, X born (omitted) 2010.
That the child live with the mother.
That the child spend time with the father as follows:
(a)During school terms on each alternate weekend from after school on Friday until 4.00pm on Sunday commencing on the first Friday of each school term.
(i)For the purposes of the child spending time with the father during the school term, the father or his nominee is to collect the child from school at the commencement of such time and the mother or her nominee is to collect the child from the father’s residence at the conclusion of such time.
(b)Commencing in 2017 for the first half of the mid-term school holiday period in even numbered years and for the second half of the mid-term holidays in odd numbered years.
(i)For the purpose of the above order the mid-term holidays are defined to commence at the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day the child is required to attend school in the new term with the changeover to occur at 12.00 noon on the middle Saturday of the period.
(c)Commencing in the 2017/2018 Christmas holidays where Christmas Day falls in odd numbered years as follows:
(i)From the conclusion of school on the last day that the child is required to attend school until 4.00pm on 26 December;
(ii)From 4.00pm on 2 January until 4.00pm on 9 January; and
(iii)From 2.00pm on 23 January until 4.00pm on the Sunday immediately prior to the child commencing school in the new school year.
(d)During the Christmas holidays where Christmas Day falls in even numbered years as follows:
(i)From 4.00pm on 26 December until 4.00pm on 2 January;
(ii)From 2.00pm on 9 January until 2.00pm on 16 January; and
(iii)From 2.00pm on 23 January until 4pm on the Sunday immediately prior to the child commencing school in…

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 Mullins and Vass

Details

AGLC: Mullins and Vass [2017] FCCA 538
Case: [2017] FCCA 538
Decision Date: 27 March 2017

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Obradovic in the Federal Circuit and Family Court of Australia. The dispute involved the arrangements for a child, X, born in 2010, between the child's mother and father.

The court was required to determine the specific orders regarding parental responsibility, the child's living arrangements, and the time the child would spend with each parent. Additionally, the court needed to address communication protocols between the parents, restrictions on denigration, and the provision of information to the father regarding the child's schooling. The court also considered the suitability and mandatory attendance of the parties at a post-orders intervention program.

The court ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was granted specific time with the child, including alternate weekends during school terms, defined periods during school holidays, and specific arrangements for Christmas holidays depending on the year. The orders also stipulated communication methods between the child and father, including electronic communication and limitations on the father's contact if the child terminated a call. Furthermore, the court imposed restrictions on communication between the parents, requiring email for all non-emergency matters, and prohibited denigration of either parent in the child's presence. The mother was ordered to facilitate the father's access to school reports and other school communications. Finally, both parents were ordered to attend a post-orders intervention program.

Orders

Orders of the court

That the mother have sole parental responsibility for the child, X born (omitted) 2010.

That the child live with the mother.

That the child spend time with the father as follows:

(a) During school terms on each alternate weekend from after school on Friday until 4.00pm on Sunday commencing on the first Friday of each school term.

(i) For the purposes of the child spending time with the father during the school term, the father or his nominee is to collect the child from school at the commencement of such time and the mother or her nominee is to collect the child from the father’s residence at the conclusion of such time.

(b) Commencing in 2017 for the first half of the mid-term school holiday period in even numbered years and for the second half of the mid-term holidays in odd numbered years.

(i) For the purpose of the above order the mid-term holidays are defined to commence at the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day the child is required to attend school in the new term with the changeover to occur at 12.00 noon on the middle Saturday of the period.

(i) From the conclusion of school on the last day that the child is required to attend school until 4.00pm on 26 December;

(ii) From 4.00pm on 2 January until 4.00pm on 9 January; and

(iii) From 2.00pm on 23 January until 4.00pm on the Sunday immediately prior to the child commencing school in the new school year.

(d) During the Christmas holidays where Christmas Day falls in even numbered years as follows:

(i) From 4.00pm on 26 December until 4.00pm on 2 January;

(ii) From 2.00pm on 9 January until 2.00pm on 16 January; and

(iii) From 2.00pm on 23 January until 4pm on the Sunday immediately prior to the child commencing school in the new school year.

For the purposes of sub-paragraphs 3(c) and 3(d) above:

(a) Where a changeover coincides with the conclusion of school by the father or his nominee collecting the child from school.

(b) Otherwise by the parties or their nominees meeting at the (omitted) Service Station on the (omitted) at (omitted) for the purpose of changeovers.

That the child have telephone or video communication with the father each Tuesday and Thursday when the child is not spending time with the father, and for the purposes of this order:

(a) The father is to provide to the child an appropriate electronic device within 7 days, if he has not already done so;

(b) The father is to call the child on the device between the hours of 5.30pm and 6pm on each of those days;

(c) The father is only to speak to the child for as long as the child wishes and if the child terminates the communication, the father is not to call the child back again on that same day;

(d) The mother is to ensure that the device is charged and that the child has access to the charged device at the relevant times;

(e) The mother is to provide a safe, quiet and private room for the child where she can communicate with her father from;

(f) The mother is not to be present during the times the child is communicating with the father and she is not to allow or encourage any third party to be present either;

Except in cases of emergency all communication between the parents in relation to the child is to be by email, and for that purpose the parents are to provide each other with an email address within 48 hours of the making of these orders.

The parents are to notify each other, and keep each other notified, of their residential address and mobile telephone number.

Each of the parents is restrained from denigrating the other parent, or permitting or allowing any third party to do so, within the hearing or presence of the child.

The mother is to provide all relevant authorities to the child’s school such as to provide permission to the father to receive copies of the child’s school reports and other communication from the school, including but not limited to orders for school photographs and invitations to school functions which parents usually attend.

10.

The mother is to keep the father reasonably informed about any major long term decisions which the mother makes pursuant to the order for sole parental responsibility.

11.

Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Counselling and Mediation Unifam (omitted) on (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Post Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete such program.

12.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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