Northcote and Northcote - [2012] FMCAfam 82

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NORTHCOTE & NORTHCOTE

[2012] FMCAfam 82

FAMILY LAW – Children – parental responsibility – allegations of family violence – allegations of sexual abuse – unacceptable risk – relocation.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC, 69ZT
Family Law Amendment (Shared Parental Responsibility) Act 2006
Evidence Act 1995 (Cth), s.140

M v M (1988) 166 CLR 69
Johnson & Page (2007) FLC 93-344
Morgan & Miles (2007) FLC 93-343
AMS v AIF (1999) 199 CLR 160
A & A: Relocation Approach (2000) FLC 93-035
U v U (2002) 211 CLR 238
KB & TC (2005) FLC 93-224
Taylor & Barker (2007) FLC 93-345
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Vance & Vance [2010] FamCAFC 250

Applicant:

MS NORTHCOTE

Respondent:

MR NORTHCOTE

File Number:

HBC 643 of 2009

Judgment of:

Baker FM

Hearing dates:

6, 7, 8 and 29 July and 5 December 2011

Date of Last Submission:

5 December 2011

Delivered at:

Hobart

Delivered on:

9 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Trezise

Solicitors for the Applicant:

Dobson, Mitchell & Allport

Counsel for the Respondent:

Mr Tucker

Solicitors for the Respondent:

Grant Tucker Barristers & Solicitors

Counsel for the Independent Children’s Lawyer:

Ms Mooney

ORDERS

Ms Northcote (“the mother”) and Mr Northcote (“the father”) have equal shared parental responsibility for the child [X] born [in] 2004 (“[X]”).
The mother is restrained from relocating [X]’s residence to Queensland.
[X] live with the mother.
[X] spend time with and communicate with the father as follows:
(a)During school term periods, each alternate weekend commencing Friday afternoon and concluding on Sunday afternoon, such time to extend to Monday afternoon if that Monday is a public holiday in Southern Tasmania.
(b)For alternating halves of each Easter/April holiday period, commencing with the first half in even-numbered years and the second half in odd-numbered years (and to the intent and effect that [X] will spend the Good Friday – Easter Monday period with his parents in alternate years).
(c)From the first Saturday until the second Saturday of each June and September school holiday periods.
(d)For alternating weeks during each Summer school holiday period, commencing with the first Saturday of the holiday in even-numbered years and commencing with the second Saturday in odd-numbered years (and to the intent and effect that [X] will spend the Christmas Eve/Day period with his parents in alternate years).
(e)By telephone or electronic means including Skype or webcam each Wednesday at 6:30 p.m.
For the purposes of paragraph (4) :
(a)The mother or her agent will deliver [X] to the Launceston Children’s Contact Centre, or if agreed between the parties to the residence of the father’s parents, at the commencement of the father’s time and the father or his agent will deliver [X] to the Hobart Children’s Contact Centre at the conclusion of the father’s time.
(b)The times for changeover will be as directed by the coordinators of…

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 Northcote and Northcote

Details

AGLC: Northcote and Northcote [2012] FMCAfam 82
Case: [2012] FMCAfam 82
Decision Date: 9 February 2012

CaseChat Overview and Summary

In the matter of Northcote and Northcote, the Federal Circuit and Family Court of Australia considered the parenting arrangements for the child, [X]. The case involved a dispute between the mother and father regarding the allocation of parental responsibilities and the child’s living arrangements, including visitation and communication schedules.

The primary legal issues before the court were the determination of equal shared parental responsibility between the parties, the primary residence of the child, and the specific details of the parenting time and communication arrangements. The court was required to consider the best interests of the child in making these decisions, guided by statutory provisions under the Family Law Act 1975.

The court found that equal shared parental responsibility was in the best interests of [X], as it would allow both parents to play a significant and active role in the child's life. The court restrained the mother from relocating [X] to Queensland, maintaining the child's residence in Tasmania. The court ordered that [X] live primarily with the mother but specified detailed arrangements for the father's parenting time, including alternate weekends, school holidays, and regular communication via telephone or electronic means. The orders also included provisions for the exchange of [X] between the parents, communication regarding the child's welfare, and the sharing of information related to school and medical matters.

In conclusion, the court made comprehensive orders addressing the shared parental responsibility, residence, and detailed parenting arrangements to ensure a balanced and supportive environment for [X], reflecting the best interests of the child as the primary consideration.

Orders

Orders of the court

Ms Northcote (“the mother”) and Mr Northcote (“the father”) have equal shared parental responsibility for the child [X] born [in] 2004 (“[X]”).

The mother is restrained from relocating [X]’s residence to Queensland.

[X] live with the mother.

[X] spend time with and communicate with the father as follows:

(a) During school term periods, each alternate weekend commencing Friday afternoon and concluding on Sunday afternoon, such time to extend to Monday afternoon if that Monday is a public holiday in Southern Tasmania.

(b) For alternating halves of each Easter/April holiday period, commencing with the first half in even-numbered years and the second half in odd-numbered years (and to the intent and effect that [X] will spend the Good Friday – Easter Monday period with his parents in alternate years).

(d) For alternating weeks during each Summer school holiday period, commencing with the first Saturday of the holiday in even-numbered years and commencing with the second Saturday in odd-numbered years (and to the intent and effect that [X] will spend the Christmas Eve/Day period with his parents in alternate years).

(e) By telephone or electronic means including Skype or webcam each Wednesday at 6:30 p.m.

For the purposes of paragraph (4) :

(a) The mother or her agent will deliver [X] to the Launceston Children’s Contact Centre, or if agreed between the parties to the residence of the father’s parents, at the commencement of the father’s time and the father or his agent will deliver [X] to the Hobart Children’s Contact Centre at the conclusion of the father’s time.

(b) The times for changeover will be as directed by the coordinators of each of the Centres or as may be otherwise agreed between the parties.

(c) The father must give the mother not less than 48 hours prior notice by email in the event that he elects not to spend time with [X] in accordance with paragraph (4).

(d) [X] will communicate with the mother by telephone or electronic means including Skype or webcam each Wednesday at 6.30 p.m. when spending time with the father.

The parties communicate by way of communication book or email relating to all issues concerning [X]’s care, welfare and development other than when urgent communication is required, which shall be by telephone.

Each of the father and the mother:

(a) Keep each other informed about school events, extra-curricular activities, sports and special events in which [X] in involved and be permitted to attend such activities.

(b) Be authorised to communicate with the staff of any school attended by [X].

(c) Keep the other informed about invitations extended to [X] to attend birthday parties and other special events that fall at times [X] is living with the other parent, so that that parent has the opportunity to take [X] to such events.

Each of the father and the mother:

(a) Immediately inform the other in the event that [X] is involved in any serious accident or suffers from any serious illness or injury.

(b) Forthwith inform the other parent of any medical practitioner with whom [X] is scheduled to consult with or has consulted with and authorise the other parent to make all reasonable enquiries of such medical practitioner concerning [X]’s health.

(d) Keep each other informed of their landline telephone number, mobile telephone number and email address, advising the other of any changes to those contact details within 48 hours of such change occurring.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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