NEAL & KELLEY - [2018] FCCA 2744

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEAL & KELLEY

[2018] FCCA 2744

Catchwords:
FAMILY LAW – Parenting – Where the parties married in (country omitted) and relocated to Australia – where the mother alleges acts of family violence by the father – where it is alleged the father lacks parental capacity – where the mother seeks a long term supervision order – where the father poses a flight risk – where an order for sole parental responsibility is made.

Legislation:
Family Law Act 1975 (Cth), pt.VII, ss.4AB(2)(g)(h), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 61DA
Evidence Act 1999 (Cth), ss.140, 140(2).

Cases cited:
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
McCall & Clarke [2009] FamCAFC 115;
Mazorski & Albright (2007) 37 FamLR 518
U v U (2002) FLC 93-112

Applicant:

MS NEAL

Respondent:

MR KELLEY

File Number:

NCC 1086 of 2016

Judgment of:

Judge Middleton

Hearing dates:

24 & 25 January 2018

Date of Last Submission:

1 May 2018

Delivered at:

Townsville

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Burke & Mead Lawyers

Solicitors for the Respondent:

Hunter Family Law Centre Pty Ltd

ORDERS

That the mother have sole parental responsibility for the children [X] born 2012 and [Y] born 2014.
That the children live with the mother.
That the children spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a)commencing the second Saturday from the date of these orders from 10:00am until 2:00pm each alternate Saturday for a period of six weeks;
(b)at the conclusion of the six week period from 9:00am until 5:00pm each alternate Saturday for a further six weeks;
(c)at the conclusion of six weeks referred to above from 9:00am Saturday until 10:00am Sunday each alternate weekend provided the father's living in Town A and until the child [Y] attains the age of five;
(d)thereafter from 9:00am Saturday until 5:00pm Sunday each alternate weekend provided the father is living in Town A;
(e)upon the child [Y] attending formal schooling from after school Friday until return to school Monday each alternate weekend and: for one half of each school holiday period, the first half in even numbered years and alternating thereafter, in the second half in odd numbered years and alternating thereafter.
Notwithstanding the above arrangements, the children spend time with their parents as follows;
(a)On the children's birthdays with the parent who does not have care of the children, as agreed by the parties and failing agreement for three hours on each of the children's birthdays. If the parties are unable to reach agreement as to the precise time, such times shall commence after school if the child's birthday falls on a school day, and otherwise such time shall commence at 4:00pm.
(b)with the father if the children are not in the care of the father on the Father's Day weekend from 9:00am Saturday to 4:00pm Sunday provided time in accordance…

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 NEAL & KELLEY

Details

AGLC: Neal and Kelley [2018] FCCA 2744
Case: [2018] FCCA 2744
Decision Date: 5 October 2018

CaseChat Overview and Summary

In the matter of NEAL & KELLEY, Judge Middleton of the Family Court of Australia considered a dispute between the mother and father concerning the parenting arrangements for their two children, [X] born in 2012 and [Y] born in 2014. The mother alleged acts of family violence by the father and expressed concerns about his parental capacity, further asserting that the father posed a flight risk. The mother sought orders for long-term supervision and sole parental responsibility for the children.

The court was required to determine the most appropriate parenting orders that would ensure the children's welfare and best interests, particularly in light of the allegations of family violence, concerns about the father's capacity, and the identified flight risk. This involved assessing the level of parental responsibility to be allocated, the living arrangements for the children, and the nature and extent of the time the children would spend with each parent. The court also had to consider measures to prevent the children from being taken out of Australia.

Judge Middleton reasoned that the circumstances warranted orders for sole parental responsibility to be granted to the mother, with the children to live with her. The court also made detailed provisions for the father's time with the children, commencing with supervised or limited contact and gradually increasing over time, contingent on factors such as the father's residence and the children's ages. Crucially, the court issued orders restraining the father from removing the children from Australia and directed that their names be placed on an airport watch list until they reached the age of 18, reflecting the significant flight risk identified. The orders also included provisions for communication between the parents and the children, information sharing regarding the children's schooling and health, and liberty for both parents to attend school and extracurricular events.

Orders

Orders of the court

That the mother have sole parental responsibility for the children [X] born 2012 and [Y] born 2014.

That the children live with the mother.

That the children spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:

(a) commencing the second Saturday from the date of these orders from 10:00am until 2:00pm each alternate Saturday for a period of six weeks;

(b) at the conclusion of the six week period from 9:00am until 5:00pm each alternate Saturday for a further six weeks;

(c) at the conclusion of six weeks referred to above from 9:00am Saturday until 10:00am Sunday each alternate weekend provided the father's living in Town A and until the child [Y] attains the age of five;

(d) thereafter from 9:00am Saturday until 5:00pm Sunday each alternate weekend provided the father is living in Town A;

(e) upon the child [Y] attending formal schooling from after school Friday until return to school Monday each alternate weekend and: for one half of each school holiday period, the first half in even numbered years and alternating thereafter, in the second half in odd numbered years and alternating thereafter.

Notwithstanding the above arrangements, the children spend time with their parents as follows;

(a) On the children's birthdays with the parent who does not have care of the children, as agreed by the parties and failing agreement for three hours on each of the children's birthdays. If the parties are unable to reach agreement as to the precise time, such times shall commence after school if the child's birthday falls on a school day, and otherwise such time shall commence at 4:00pm.

(b) with the father if the children are not in the care of the father on the Father's Day weekend from 9:00am Saturday to 4:00pm Sunday provided time in accordance with order 3(d) above has commenced;

(c) with the mother if the children are not in the care of the mother from 9:00am Saturday to 4:00pm Sunday on the weekend which includes Mother's Day;

(d) with the father during Christmas school holidays from 2:00pm Christmas Eve to 2:00pm Christmas Day in even numbered years, from 2:00pm on Christmas Day to 2:00pm on Boxing Day, in odd numbered years provided the time referred to in order 3(d) has commenced;

(e) with the mother during Christmas holidays from 2:00pm Christmas Eve to 2:00pm Christmas Day, in odd numbered years and from 2:00pm on Christmas Day to 2:00pm on Boxing Day and even numbered years.

The children shall communicate with the parents by arrangement between the parents at reasonable times, but failing agreement with the parent who does not have care of the children on Tuesdays and Thursdays between 5:00pm and 6:00pm.

These orders shall be sufficient authority so as to meet each of the children's schools to provide the father with copies of all school reports, any other reports on school progress and behavioural issues and other schools circulars in relation to the children, and inform the father of upcoming children's presentations, events/functions and notification of parent teacher nights.

That each parent must ensure that the other parent is kept informed by telephone or text or email as soon as reasonably practicable of;

(a) any medical illness or condition suffered by the children;

(b) any medication that has been prescribed for the children;

(c) any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children; and

(d) any other matter of relevance to the welfare of the children.

That the parents be at liberty to attend parent/teacher nights, sporting, recreational and social events which the children participate in as part of their extended school curriculum. The parent shall be at liberty to also attend any sporting activities and training which the children engage in as part of any sporting club or association which they are a member.

That these order shall be sufficient authority so as to permit each of the parents to obtain medical information relation of the children from all the treating health professionals of the children and to attend any appointments the children may have with the treating health professional.

10.

That each of the parties keep the other advised of their current telephone number.

11.

That the mother be permitted to serve a copy of these orders on the school, medical practitioners, and any other healthcare provider for the children.

12.

That the father or his servants and agents be restrained from taking or sending or attempt to take or send the children [X] born 2012 and [Y] born 2014 from the Commonwealth of Australia and the Marshal and all officers of the Australian Federal Police and the Police forces of the States and Territories are requested and authorised to give effect to this order.

13.

That the names of the children remain on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and that the Australian Federal Police maintain the children's names on the watchlist until the children reach 18 years of age.

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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