Nieves and Macy - [2017] FCCA 3194

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIEVES & MACY

[2017] FCCA 3194

Catchwords:
FAMILY LAW – Parenting – Child living with parents on a week about basis for over two years – parties living considerable distance apart – competing live with applications – child has strong relationships with both parents – finely balanced case – child to live with father and spend time with mother.

Legislation:

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

Cases cited:

Bondelmonte v Bondelmonte & Another [2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Jones & Dunkel (1959) 101 CLR 298
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Mazorski & Albright [2007] FamCA 520

Slater & Light [2011] FamCAFC 1

Applicant:

MS NIEVES

Respondent:

MR MACY

File Number:

PAC 4755 of 2016

Judgment of:

Judge Obradovic

Hearing date:

11 – 12 December 2017

Date of Last Submission:

12 December 2017

Delivered at:

Parramatta

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Crosslands

Solicitors for the Applicant:

Watson Law Pty Ltd

Counsel for the Respondent:

Ms Druitt

Solicitors for the Respondent:

Caldwell Martin Cox

ORDERS

All previous parenting orders are discharged.
The child [X] born (omitted) 2013 shall live with the father, during which he shall have sole parental responsibility for making the non-major decisions about his day to day care, welfare and development.
The father shall be permitted to relocate the child’s residence to (location omitted).
The child shall be enrolled in the School A at (location omitted).
The parties shall have equal shared parental responsibility for making decisions about the major long term issues concerning the child, including his current and future education, his religious and cultural upbringing, health issues, his name and any changes to the prospective living arrangements of the child that make it significantly more difficult for him to spend time with either parent, and the parties shall consult with each other, either verbally or in writing, on these issues and shall make a genuine effort to come to a joint decision about them.
All consultations in accordance with Order 5 above shall be conducted in good faith, in a child focused and non-derogatory manner.
The child shall spend time with the mother as follows, during which she shall have the sole parental responsibility for making the non-major decisions about his day to day care, welfare and development:
(a)During school term:
(i)Each alternate weekend from the conclusion of school on the Friday until commencement of school on the Monday (or until the commencement of school on the Tuesday if it is a long weekend), commencing on the first weekend after the commencement of the school term in 2018.
(b)During school holidays at the conclusion of Terms 1, 2 and 3 for the first half in odd numbered years and the second half in even numbered years.
(c)For the Christmas school holidays:
(i)For 2017 and each alternate year thereafter, from the conclusion of school on the final day of the school…

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 Nieves and Macy

Details

AGLC: Nieves and Macy [2017] FCCA 3194
Case: [2017] FCCA 3194
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of *Nieves and Macy*, heard by Judge Obradovic, the court considered parenting orders concerning a child, [X], born in 2013. The dispute involved the child's living arrangements, parental responsibility, and the father's proposed relocation with the child.

The court was required to determine the primary residence of the child, the allocation of parental responsibility for both major long-term decisions and day-to-day care, and whether to permit the father to relocate the child's residence. Additionally, the court needed to establish a detailed schedule for the child's time with each parent, including provisions for school holidays and special occasions, and to address communication between the child and each parent. The court also considered orders regarding the exchange of the child, notification of medical issues, and the conduct of the parents towards each other and in the presence of the child.

The court ordered that all previous parenting orders be discharged. The child, [X], was to live with the father, who would have sole parental responsibility for non-major decisions regarding the child's day-to-day care, welfare, and development. The father was permitted to relocate the child's residence to a specified location and to enrol the child in a particular school. Both parents were to share equal parental responsibility for major long-term decisions concerning the child, with an obligation to consult in good faith and make genuine efforts to reach joint decisions. The mother was granted specific time with the child during school terms, school holidays, and Christmas, with the father having defined periods of care as well. The orders also included provisions for liberal communication between the child and each parent, procedures for changeovers, and mutual obligations to inform each other of major medical issues. Furthermore, both parents were restrained from denigrating the other parent or their family members in the child's presence.

Orders

Orders of the court

All previous parenting orders are discharged.

The child [X] born (omitted) 2013 shall live with the father, during which he shall have sole parental responsibility for making the non-major decisions about his day to day care, welfare and development.

The father shall be permitted to relocate the child’s residence to (location omitted).

The child shall be enrolled in the School A at (location omitted).

The parties shall have equal shared parental responsibility for making decisions about the major long term issues concerning the child, including his current and future education, his religious and cultural upbringing, health issues, his name and any changes to the prospective living arrangements of the child that make it significantly more difficult for him to spend time with either parent, and the parties shall consult with each other, either verbally or in writing, on these issues and shall make a genuine effort to come to a joint decision about them.

All consultations in accordance with Order 5 above shall be conducted in good faith, in a child focused and non-derogatory manner.

The child shall spend time with the mother as follows, during which she shall have the sole parental responsibility for making the non-major decisions about his day to day care, welfare and development:

(a) During school term:

(i) Each alternate weekend from the conclusion of school on the Friday until commencement of school on the Monday (or until the commencement of school on the Tuesday if it is a long weekend), commencing on the first weekend after the commencement of the school term in 2018.

(b) During school holidays at the conclusion of Terms 1, 2 and 3 for the first half in odd numbered years and the second half in even numbered years.

(i) For 2017 and each alternate year thereafter, from the conclusion of school on the final day of the school term until 10am on 27 December and then for the final two weeks of the school holiday period, concluding on the Friday before the first day of Term 1;

(ii) For 2018 and each alternate year thereafter, from 10am on 27 December until 10pm on 14 January.

(d) Each Mother’s Day weekend from 6pm on the Friday until the commencement of school on the Monday in the event that the child is not already spending time with the mother that weekend in accordance with these Orders;

(e) At other such times as the parties may mutually agree in writing.

For the avoidance of doubt, the child shall live with the father as follows:

(a) Each Father’s Day weekend in the event that the child is otherwise scheduled to be with the mother that weekend pursuant to these Orders;

(b) For 2017 and each alternate year thereafter, from 10am on 27 December 10pm on 14 January;

(c) For 2018 and each alternate year thereafter, from the conclusion of school on the final day of the school term until 10am on 27 December and then from 10pm on 14 January.

The child shall communicate by telephone on a liberal and flexible basis with each parent when in the other parent’s care, however the child shall communicate with the mother at least each Sunday, Tuesday and Thursday that the child is not in the mother’s care, by Skype or other video conferencing application between the hours of 6pm – 6.30pm.

10.

For the purpose of changeovers the father is to deliver the child to the mother’s residence at the commencement of the child’s time with the mother and the mother is to deliver the child to the father’s residence at the conclusion of the child’s time with the mother.

11.

Whilst the child is in each parents respective care, both parents shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each parent shall keep the other properly informed of any required treatment or medication in relation to the child and the parties shall ensure that the proper administration of such treatment or medication is performed by them.

12.

Both parents are restrained from denigrating, belittling or insulting the other parent, the person who the other parent is in a domestic relationship with, or members of the other parent’s family in the presence or hearing of the child and each parent must use their best endeavours to ensure that no other person denigrates, belittles or insults the other parent, the person who the other parent is in a domestic relationship with or members of the other parent’s family in the presence or hearing of the child.

13.

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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