Nevis and Galbraith - [2019] FamCA 916

FAMILY COURT OF AUSTRALIA

NEVIS & GALBRAITH

[2019] FamCA 916

FAMILY LAW – CHILDREN – final orders – best interests – where parties substantially agree on most matters but unable to agree on what primary school the child will attend – where mother seeks orders for the child to attend the local State primary school – where father seeks orders that the child attend an independent school – where school fees to be paid by the paternal grandparents – where school is not proximate to either parent – where parties agree that they will have equal shared parental responsibility and the child will live with the mother and spend significant and substantial time with the father – orders for the child to live with the mother and spend time with the father – orders that the child attend the local State school.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 117(2)
Family Law Rules 2004 Part 15.5, Rule 15.44

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, [1]-[16]; [2006] HCA 27

Bilz Breugelman [2013] FamCA 578, [81]-[83]
Cox v Journeaux (No. 2) (1935) 52 CLR 713, 720; [1935] HCA 48
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [90]; [2011] HCA 21
Eden v Eden-Proust [2011] FamCAFC 138
Re G (Children’s Schooling) [2000] FLC 93-025; [2000] FamCA 462
Walton v Gardiner (1993) 177 CLR 378, 329-393; [1993] HCA 77

APPLICANT:

Ms Nevis

RESPONDENT:

Mr Galbraith

FILE NUMBER:

MLC

3534

2018

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

30-31 July, 1 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

KCL Law

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

Orders

The mother and the father have equal shared parental responsibility for the child of the marriage X born … 2014 (“the child”).
The child live with the mother.
The child commence her primary school education at B Primary School at C Street, Suburb D, Victoria, in 2020.
The child live with and spend time with the father as follows:
(a)during the school term from 2020 onwards on a fortnightly cycle commencing week one on 20 January 2020:
(i)in week one: from the conclusion of school Wednesday until the commencement of school on Thursday, the father to collect and deliver the child to and from school; and, in the event that the child is not at school, the father to collect the child from the mother’s residence at 9.00 am on Wednesday and, or alternatively, mother to collect the child from the father’s residence at 5.45 pm on Thursday; and
(ii)in week two: from the conclusion of school on Thursday until the commencement of school on Monday, the father to collect and deliver the child to and from school; and in the event that the child is not at school, the father to collect the child from…

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 Nevis and Galbraith

Details

AGLC: Nevis and Galbraith [2019] FamCA 916
Case: [2019] FamCA 916
Decision Date: 12 December 2019

CaseChat Overview and Summary

This matter concerned parenting orders made by McEvoy J in the Federal Circuit and Family Court of Australia. The dispute involved the mother and father of a child, X, born in 2014, regarding the arrangements for their child's care and time spent with each parent.

The court was required to determine the specific terms of parental responsibility, the child's living arrangements, and the detailed schedule for the child to spend time with both the mother and the father. This included provisions for school terms, school holidays, public holidays, birthdays, and arrangements for interstate and overseas travel. The court also addressed communication between parents regarding the child's health and education, as well as injunctions to prevent disparaging remarks about the other parent in the child's presence.

McEvoy J made orders establishing equal shared parental responsibility for the child. The child was ordered to live with the mother and commence primary school at a specified school. The orders then set out a comprehensive schedule for the child to spend time with the father, detailing specific days, times, and cycles for school terms and holidays, including provisions for changeovers and public holidays. Further orders addressed interstate and overseas travel, passport arrangements, notification of address changes, and restrictions on enrolling the child in extracurricular activities that might impinge on the other parent's time without consent. Injunctions were also granted restraining the parents from discussing the proceedings or denigrating each other in the child's presence. All extant parenting orders made on previous dates were discharged, with specific exceptions noted.

Orders

Orders of the court

The mother and the father have equal shared parental responsibility for the child of the marriage X born … 2014 (“the child”).

The child live with the mother.

The child commence her primary school education at B Primary School at C Street, Suburb D, Victoria, in 2020.

The child live with and spend time with the father as follows:

(a) during the school term from 2020 onwards on a fortnightly cycle commencing week one on 20 January 2020:

(i) in week one: from the conclusion of school Wednesday until the commencement of school on Thursday, the father to collect and deliver the child to and from school; and, in the event that the child is not at school, the father to collect the child from the mother’s residence at 9.00 am on Wednesday and, or alternatively, mother to collect the child from the father’s residence at 5.45 pm on Thursday; and

(ii) in week two: from the conclusion of school on Thursday until the commencement of school on Monday, the father to collect and deliver the child to and from school; and in the event that the child is not at school, the father to collect the child from the mother’s residence at 9.00 am on Thursday and, or alternatively, the mother to collect the child from the father’s residence at 5.45 pm on Monday;

(b) during the long summer holiday period commencing in December 2019, from 10.00 am on 27 December 2019 to 10.00 am on 2 January 2020 and from 10.00 am on 8 January 2020 to 10.00 am on 14 January 2020, and otherwise as provided for in paragraph 3(a) save that the child will be returned to the mother by no later than 4.00 pm on the day before the commencement of term 1;

(i) in 2020, and each alternate year thereafter, from 10.00 am on the first Saturday of the holiday period to 5.00 pm on the middle day of the holiday period;

(ii) in 2021, and each alternate year thereafter, from 5.00 pm on the middle day of the holiday period to the commencement of the next school term;

(d) during the long summer holiday period commencing in 2020, and each year thereafter, as agreed, and in default of agreement, on a week about basis with changeover to occur each Sunday at 5.00 pm, and:

(i) in 2020, and each alternate year thereafter, commencing at 10:00am on the first Saturday of the holiday period; and

(ii) in 2021, and each alternate year thereafter, commencing at 5.00 pm on the second Sunday of the holiday period;

(e) for Christmas:

(i) in 2019, and each alternate year thereafter, from 8.00 pm on Christmas eve until 4.00 pm on Christmas day; and

(ii) for Christmas in 2020, and each alternate year thereafter, from 11.00 am on Christmas day until 12 noon on Boxing day;

(f) for Easter:

(i) in 2020, and each alternate year thereafter (notwithstanding how the school term holidays fall), from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday; and

(ii) in 2021, and each alternate year thereafter (notwithstanding how the school term holidays fall), from 5.30 pm on Easter Thursday (or the conclusion of school if a school day) until 5.30 pm on Easter Saturday;

(g) on the child’s birthday, in the event the child is not already spending time with the father, as agreed, or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 12.00 pm until 6.00 pm;

(h) on the father’s birthday, in the event the child is not already spending time with the father, as agreed, or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 10.00 am until 10.00 am the following day (or the commencement of school);

(i) on Father's Day weekend each year from 6.00 pm on the Saturday immediately before Father’s Day until the commencement of school on Monday;

(j) at all other times as may be agreed between the parties in writing.

Unless otherwise agreed between the parties, the father's time with the child is to be suspended to ensure that the child spends time with the mother:

(a) during the long summer holiday period commencing December 2019, from 10.00 am on 2 January 2020 to 10.00 am on 8 January 2020 and from 10.00 am on 14 January 2020 to 10.00 am on 20 January 2020;

(b) for one half of the school term holiday periods as agreed, and in default of agreement:

(i) in 2020, and each alternate year thereafter, from 5.00 pm on the middle day of the holiday period to the commencement of the next school term;

(ii) in 2021, and each alternate year thereafter, from 10.00 am on the first Saturday of the holiday period to 5.00 pm on the middle day of the holiday period;

(c) during the long summer holiday period commencing in 2020, and each year thereafter, as agreed, and in default of agreement, on a week about basis with changeover to occur each Sunday at 5.00 pm and:

(i) in 2020, and each alternate year thereafter, commencing at 5.00 pm on the second Sunday of the holiday period; and

(ii) in 2021, and each alternate year thereafter, commencing at 10.00 am on the first Saturday of the holiday period;

(d) for Christmas:

(i) in 2019 from 10.00 am on Christmas eve until 8.00 pm on Christmas eve and then from 5.00 pm on Christmas day until 10.00 am on 27 December 2019; and

(ii) for Christmas in 2020, and each alternate year thereafter, from 10.00 am on Christmas eve until 11.00 am on Christmas day; and

(iii) in 2021, and each alternate year thereafter, from 10.00 am on Christmas eve until 8.00 pm on Christmas eve and then from 4.00 pm on Christmas day until 4.00 pm on Boxing day;

(e) for Easter:

(i) in 2020, and each alternate year thereafter, from 5.30 pm on Easter Thursday (or the conclusion of school if a school day) until 5.30 pm on Easter Saturday; and

(ii) in 2021, and each alternate year thereafter, from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday (or the commencement of school on Tuesday if a school day);

(f) on the child’s birthday, in the event the child is not already spending time with the mother, as agreed, or in default of agreement, if it is on a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 12.00 pm until 6.00 pm;

(g) on the mother’s birthday, in the event the child is not already spending time with the mother, as agreed or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 10.00 am until 10.00 am the following day (or the commencement of school);

(h) on Mother's Day weekend each year from 6.00 pm on the Saturday immediately before Mother's Day until the commencement of school on Monday.

Unless otherwise set out in these orders, changeover shall be as follows:

(a) during the school term, from after school if it is a school day, or if it is non-school day, the parent who is to commence their period of time shall collect the child from the other parent’s residence at the beginning of such time;

(b) during the school term holidays and the long summer vacation and, or alternatively, any other period of time, the father shall collect the child from the mother’s residence at the beginning of the father’s time with the child and the mother shall collect the child from the father’s residence at the conclusion of the father’s time with the child IT BEING NOTED that unless it is impracticable the delivery and collection arrangements are to be undertaken by each parent, personally.

In the event the child’s time with either party falls on a public holiday or school curriculum day, that time shall commence at 9.00 am (as opposed to at the conclusion of school) and conclude at 5.45 pm (as opposed to at the commencement of school) and:

(a) if the public holiday or school curriculum day falls on a Friday, the weekend time shall extend to include the Friday; and

(b) if the public holiday or school curriculum day falls on a Monday, the weekend time shall extend to include the Monday.

The mother and the father to spend such further and other times with the child as agreed between the parties from time to time.

The parties will facilitate any reasonable request by the child to telephone or FaceTime the other parent whilst she is in their care in a cooperative and efficient manner.

10.

The parties each be at liberty to attend any school or extra-curricular activities that parents are ordinarily able to attend and they otherwise be at liberty to communicate directly with the child’s school and to obtain copies of any documentation or information that is ordinarily available to parents.

11.

The parties will keep each other advised of any health issues relating to the child and they will otherwise be at liberty to communicate directly with any medical professional upon whom the child attends and to obtain any information relating to her health, including but not limited to her medical and Medicare records.

12.

Each the mother and father is able to take the child interstate during their residence period without obtaining the other parent’s consent on the condition that the travelling parent shall provide the other parent with a copy of the itinerary, a contact telephone number and details of accommodation no less than fourteen (14) days prior to departure

13.

In the event that the mother or father wishes to take the child interstate outside their specified residence period as provided for in these orders, then the travelling parent is to obtain the other parent’s consent (which consent shall not unreasonably be withheld) and the travelling parent is subject to the following:

(a) the travelling parent is to provide the other parent with no less than one (1) month’s written notice of the intended interstate travel period;

(b) the non-travelling parent is to advise the travelling parent of their consent or otherwise to the proposed travel within five (5) days of receipt of the notice pursuant to paragraph 13 (a) herein;

(c) the travelling parent shall facilitate telephone communication between the child and the other parent whilst the child is travelling interstate on each second day at such time to be agreed, and in default of agreement, at 6.00 pm Australian Eastern Standard Time (or as close to 6.00 pm as is reasonably practicable);

(d) in the event that the interstate travel is outside the usual residence periods then make up time shall be provided to the other parent either prior to or after the interstate travel, which make up time is to be agreed to in writing by the parents no less than fourteen (14) days prior to the proposed travel.

14.

Each parent is able to take the child overseas during their residence period without obtaining the other parent’s consent on the condition that the travelling parent shall provide the other parent with a copy of the itinerary, a contact telephone number and details of accommodation thirty (30) days prior to departure.

15.

In the event that a parent wishes to take the child overseas outside their specified residence period as provided for in these orders, then the travelling parent is to obtain the other parent’s written consent (which consent shall not unreasonably be withheld) and the travelling parent is subject to the following:

(a) the travelling parent is to provide the other parent with no less than three (3) months’ written notice of the intended overseas travel period;

(b) the non-travelling parent is to advise the travelling parent of their consent or otherwise to the proposed travel within fourteen (14) days of receipt of the notice pursuant to paragraph 15 (a) herein;

(c) the travelling parent shall facilitate telephone communication between the child and the other parent whilst the child is travelling overseas on each second day at such time to be agreed; and

(d) in the event that the overseas travel is outside the usual residence periods then make up time shall be provided to the other parent either prior or after the overseas travel, which make up time is to be agreed to in writing by the parents no less than twenty-eight (28) days prior to the proposed travel.

16.

In the event the child is required to be issued with an Australian Passport, both parties will sign all documents and do all things necessary for an Australian Passport to issue in her name, and:

(a) the costs of the application for the Passport are to be shared equally between the parties;

(b) the mother shall hold onto the child’s Passport for safekeeping;

(c) the mother shall provide the child’s Passport to the father within seven (7) days (but not less than 48 hours prior to the date of departure) of any proposed travel by the father with the child overseas; and

(d) the father shall return the child’s Passport to the mother within seven (7) days of her return to Australia.

17.

Each parent shall notify each other of any change of residence, landline, if applicable, and/or telephone number within 24 hours of any change, including change of email address.

18.

Neither parent will enrol the child in any extracurricular activities which shall impinge on the other parent’s time unless the other parent has provided their written consent.

19.

The parents be and are hereby restrained by injunction, both personally and via their servants and agents, from:

(a) discussing these proceedings or any issues relating to these proceedings; and

(b) insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their family or permitting any other person to do so in the presence or hearing of the child.

20.

All extant parenting orders made on 1 June 2018 and 25 September 2018 be otherwise discharged, save that order 3(a) of the orders of Registrar Field made on 1 June 2018 continue until 24 December 2019 and is then discharged.

AND THE COURT NOTES:

21.

That pursuant to s 65 DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with the order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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