Norton and Norton (No.2) - [2018] FCCA 53

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTON & NORTON (No.2) [2018] FCCA 53

Catchwords:
FAMILY LAW – Application for final parenting orders – children 9 and 6 – father seeking equal shared parental responsibility and equal time – mother seeking sole parental responsibility children to live with mother and spend time with father – high conflict, acrimony and hostility characteristic of the parents’ relationship – conflict continued unabated – inability of parents to communicate in relation to matters concerning the children – father previously changed older child’s school in full knowledge that mother did not consent – father changed younger child’s day care without advising the mother – children have warm established relationship with both parents – conflict likely to continue – order made for sole parental responsibility children to live with the mother and spend time with the father.

Legislation:

Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65D, 65DAA, 65DAC(2), 65DAC(3)

Cases cited:

Saldowne & Reith [2010] FamCA 169

Moses & Downing [2009] FamCA 1270
H & H (2003) 176 FLR 35
Johns & Jasapas [2016] FamCA 471

Applicant: MS NORTON

Respondent: MR NORTON

File Number: PAC 986 of 2015

Judgment of: Judge Tonkin

Hearing dates: 4 & 5 September 2017

Date of Last Submission: 5 September 2017

Delivered at: Canberra

Delivered on: 23 January 2018
REPRESENTATION

Counsel for the Applicant: Mr Battley

Solicitors for the Applicant: Murray J Nott Solicitor

Counsel for the Respondent: Mr Tockar

Solicitors for the Respondent: Gown & Gavel

Solicitor Advocate for the Independent Children's Lawyer:

Solicitors for the Independent Children’s Lawyer:

Ms Tran

Legal Aid NSW Parramatta

ORDERS
(1)The children of the marriage, X born on (omitted) 2008, and Y born on (omitted) 2001 (“the children”) shall live with the mother.
(2)The mother shall have sole parental responsibility for the children.
(3)Notwithstanding Order 2 hereof, the following shall apply:
(a)No less than 21 days prior to making any decision affecting the children's care, welfare and development, including but not limited to issues concerning the children’s education, medical treatment and their place of residence, the mother shall do the following:
(i)Notify the father in writing of any such decision; and
(ii)Give consideration to any views expressed by the father.

(b)Upon a decision being made in accordance with this order, the mother shall notify the father in writing of her decision and the reasons therein.

(4)Notwithstanding Order 2 hereof, the mother shall:-
(a)Do all such things as are necessary to authorise the father to receive directly copies of the children's school reports and school photograph order forms;
(b)Do all such things as are necessary to authorise the father to liaise directly with any specialist medical practitioner in the event that the children, or either of them, require specialist medical treatment ;
(c)Notify the father as soon as practicable of any medical emergency which results in hospital admission and do all such things as are necessary to authorise the father to liaise directly with treating medical practitioners in relation to…

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.

Keep reading for free

Create a free CaseChat account to read Norton and Norton (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 53
Decision Date: 23 January 2018

CaseChat Overview and Summary

This case concerned parenting orders made by Judge Tonkin in the Federal Circuit Court of Australia. The proceedings involved the mother and father of two children, X and Y, and the dispute centred on the arrangements for the children's living situation, parental responsibility, and time spent with each parent.

The court was required to determine the primary residence of the children, the allocation of parental responsibility, and the specific terms of the time the children would spend with each parent. Additionally, the court had to consider provisions for communication between parents regarding decisions affecting the children's welfare, including education and medical treatment, and to establish detailed arrangements for the children's time with each parent during school holidays, birthdays, and other significant periods.

Judge Tonkin ordered that the children live with the mother and that she have sole parental responsibility. However, this was qualified by detailed provisions requiring the mother to notify the father in writing of proposed decisions concerning the children's care, welfare, and development, and to give consideration to his views. The orders also stipulated specific arrangements for the father to receive information about the children's schooling and medical treatment, and for the children to spend time with the father on alternate weekends and during school holidays, with further specific provisions for holidays, birthdays, and changeovers. The court also made orders regarding the children's passports, a restriction on the father regarding one child's hair, and a requirement for mediation in the event of disputes over school changes or overseas travel.

Orders

Orders of the court

(1) The children of the marriage, X born on (omitted) 2008, and Y born on (omitted) 2001 (“the children”) shall live with the mother.

(2) The mother shall have sole parental responsibility for the children.

(3) Notwithstanding Order 2 hereof, the following shall apply:

(a) No less than 21 days prior to making any decision affecting the children's care, welfare and development, including but not limited to issues concerning the children’s education, medical treatment and their place of residence, the mother shall do the following:

(i) Notify the father in writing of any such decision; and

(ii) Give consideration to any views expressed by the father.

(b) Upon a decision being made in accordance with this order, the mother shall notify the father in writing of her decision and the reasons therein.

(4) Notwithstanding Order 2 hereof, the mother shall:-

(a) Do all such things as are necessary to authorise the father to receive directly copies of the children's school reports and school photograph order forms;

(b) Do all such things as are necessary to authorise the father to liaise directly with any specialist medical practitioner in the event that the children, or either of them, require specialist medical treatment ;

(c) Notify the father as soon as practicable of any medical emergency which results in hospital admission and do all such things as are necessary to authorise the father to liaise directly with treating medical practitioners in relation to any hospital admission;

(d) Notify the father of all extracurricular activities that the children are enrolled in and provide the father with the information relevant so that he may attend those events and permit his attendance;

(e) Notify the father of any change of place of residence in writing within 7 days of any change save that the parties are restrained from relocating the children’s residence outside the Sydney catchment area;

(f) Notify the father in writing 14 days in advance of any proposed change of schools for the children and seek his view.

(5) Unless otherwise agreed in writing, the children shall spend time with the father:-

(a) From after school each alternate Friday to before school the following Tuesday; and

(b) For half of all the NSW gazetted school holiday periods, being the first half in even numbered years and the second half in odd numbered years.

(6) Notwithstanding these orders, the children shall:-

(a) Spend time with their mother from 10:00am to 5:00pm on Mother’s Day; and

(b) Spend time with their father from 10:00am to 5:00pm on Father’s Day; and;

(c) During years ending in an odd number spend time with the mother from 9:00am Christmas Eve to noon on Christmas Day; and

(d) During years ending in an odd number spend time with the father from noon on Christmas Day to 3.00 pm on Boxing Day.

(e) During years ending in zero and an even number spend time with the mother from noon on Christmas Day to 3:00pm on Boxing Day; and

(f) During years ending in zero and an even number spend time with the father from 9:00am Christmas Eve to noon on Christmas Day; and

(7) The father shall collect the children:-

(a) From the children’s school each alternate Friday during school term; and

(b) From the mother’s residence at the beginning of any block, gazetted holiday time he is spending with the children.

(8) The father shall return the children to school during school terms each alternate Tuesday.

(9) The mother shall collect the children from the father at his residence on completion of the father’s holiday time with the children.

(10) Changeovers, other than at the children’s school, shall occur at the mother’s residence or the father’s residence.

(11) In the event that the father spends time with the children in the first half of the school holidays his time with the children shall resume the first weekend after school resumes and in the event he has the children in the second half of that holiday period his time with the children shall resume on the second weekend after school resumes.

(12) The first half of all school holidays periods shall commence at 9:00am on the first Saturday of such holidays.

(13) The second half of all school holidays periods shall commence at 9:00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the father during that period.

(14) The Christmas/New Year end of term school holiday period as gazetted shall end at 4:00pm on the Saturday immediately preceding the new school term in the event the children are with the father in the second half of that holiday period.

(15) If either child’s birthday falls on a school day, the parent with whom the child is neither living with nor spending time with on that occasion shall spend time with the child from after school until 6:30pm with that parent to collect the child from school and return the child to the other parent’s residence at 6:30pm.

(16) If either child’s birthday falls on a week-end the parent with whom the child is neither living with nor spending time with on that occasion, shall spend time with the child from noon to 6:00pm with that parent to collect the child from the residence of the other parent at noon and return the child to the other parent’s residence at 6:00pm.

(17) Each party may communicate with either child on alternate days between 6:00pm and 7:00pm.

(18) The mother is at liberty to collect the children’s passports from the Parramatta Registry and retain those in her safe custody.

(19) The father is restrained from cutting, or allowing any other person to cut X’s hair.

(20) The father shall notify the mother in writing seven days before changing his residential address.

(21) Notwithstanding these orders, the children shall not change schools and/or travel overseas without the written consent of both parties. In the event that either of these matters is in dispute the parties shall participate in mediation to resolve these issues.

Notation

A. The father shall ensure that all school uniforms worn by either child are returned each fortnight.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.