PADMORE & MACLEAN - [2020] FCCA 260

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADMORE & MACLEAN

[2020] FCCA 260

Catchwords:
FAMILY LAW – Parenting – application for sole responsibility – school holidays – whether order should be made permitting the mother to take the child on school holidays during the school term with the permission of the school.

Legislation:

Education and Training Reform Act 2006 (Vic), ss.2.1.1 - 2.1.5
Family Law Act 1975 (Cth), ss.11F, 60CC(3), 61C, 61DA, 62B, 65DA(2), 65DAE

Cases cited:

Clair v Gall [2011] FMCAfam 294

Applicant:

MR PADMORE

Respondent:

MS MACLEAN

File Number:

MLC 9927 of 2018

Judgment of:

Judge McNab

Hearing date:

30 January 2020

Date of Last Submission:

30 January 2020

Delivered at:

Melbourne

Delivered on:

31 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Leeton

Solicitors for the Applicant:

Culshaw Miller Lawyers

Counsel for the Respondent:

Ms Rothschild

Solicitors for the Respondent:

Elisa Rothschild Lawyers

ORDERS

The father and the mother have equal shared parental responsibility for the child [X] born … 2010 (“[X]”).
[X] live with the mother.
[X] spend time and communicate with the father as follows:
(a)each alternate weekend during school terms, from after school Thursday until 7.00pm on Sunday; and
(b)as agreed between the parties in writing, including by email and/or SMS text message.
Changeover take place at [X]’s school and on non-school days, changeover take place at the Service Station A at Location B, Town C or at such other place as agreed between the parties in writing.
[X] spend time with the father for one half of all Victorian gazetted school holiday periods being the first half in even numbered years with the father to collect [X] at the conclusion of the last day of school and return [X] on the Sunday at 7.00pm, and in the second half in odd numbered years with the father to collect [X] on the Monday at 10.00am and return [X] on the following Sunday at 7.00pm.
[X] spend time with the mother for one half of the Victorian gazetted school holiday periods being the first half of the odd numbered years, and in the second half of the even numbered years.

Special Occasions

Notwithstanding the above, the mother’s time with [X] be suspended and [X] spend time with the father as follows:
(a)from the conclusion of school on Friday before Father’s Day until 7.00pm on Sunday;
(b)in the event that Easter does not fall during the first term school holidays, from after school on Easter Thursday until 5.00pm on Easter Monday in even numbered years;
(c)from 3.00pm Christmas Eve until 1.00pm Christmas Day in odd numbered years;
(d)[X] spend time with the father on [X]’s birthday in each even numbered year from the conclusion of school until the commencement of school the next day, in the event that [X]’s birthday falls on a weekend that is not the father’s weekend, then the weekend be swapped and [X] spend her birthday weekend with the father;
(e)[X] spend time with the mother on [X]’s birthday in each odd numbered year…

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 PADMORE & MACLEAN

Details

AGLC: Padmore and Maclean [2020] FCCA 260
Case: [2020] FCCA 260
Decision Date: 31 January 2020

CaseChat Overview and Summary

This matter concerned an application by the mother for sole parental responsibility for the child, [X], and specifically sought an order permitting her to take the child on school holidays during the school term with the permission of the school. The court was presided over by Judge McNab.

The legal issues before the court were whether to grant the mother sole parental responsibility, and whether to permit her to take the child on school holidays during term time, contingent on school permission. The court was also required to determine the specific arrangements for the child's time with each parent, including during school holidays and special occasions, as well as orders relating to the child's education, health, and overseas travel.

The court ultimately made orders for equal shared parental responsibility, with the child to live with the mother. The orders detailed specific arrangements for the child's time with the father, including alternate weekends during school terms and half of all Victorian gazetted school holiday periods, with specific provisions for the division of these holidays in even and odd-numbered years. Special occasions, such as birthdays and public holidays, were also allocated with specific provisions for each parent. The court also made orders regarding the child's education, health, and overseas travel, including requirements for written notice and documentation for international travel. Injunctions were granted restraining both parents from denigrating the other or discussing proceedings in the child's presence, and from consuming alcohol or drugs above a specified blood alcohol content during periods of care. The application for sole parental responsibility was dismissed.

Orders

Orders of the court

The father and the mother have equal shared parental responsibility for the child [X] born … 2010 (“[X]”).

[X] live with the mother.

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

(a) each alternate weekend during school terms, from after school Thursday until 7.00pm on Sunday; and

(b) as agreed between the parties in writing, including by email and/or SMS text message.

Changeover take place at [X]’s school and on non-school days, changeover take place at the Service Station A at Location B, Town C or at such other place as agreed between the parties in writing.

[X] spend time with the father for one half of all Victorian gazetted school holiday periods being the first half in even numbered years with the father to collect [X] at the conclusion of the last day of school and return [X] on the Sunday at 7.00pm, and in the second half in odd numbered years with the father to collect [X] on the Monday at 10.00am and return [X] on the following Sunday at 7.00pm.

[X] spend time with the mother for one half of the Victorian gazetted school holiday periods being the first half of the odd numbered years, and in the second half of the even numbered years.

Special Occasions

Notwithstanding the above, the mother’s time with [X] be suspended and [X] spend time with the father as follows:

(a) from the conclusion of school on Friday before Father’s Day until 7.00pm on Sunday;

(b) in the event that Easter does not fall during the first term school holidays, from after school on Easter Thursday until 5.00pm on Easter Monday in even numbered years;

(d) [X] spend time with the father on [X]’s birthday in each even numbered year from the conclusion of school until the commencement of school the next day, in the event that [X]’s birthday falls on a weekend that is not the father’s weekend, then the weekend be swapped and [X] spend her birthday weekend with the father;

(e) [X] spend time with the mother on [X]’s birthday in each odd numbered year from the conclusion of school until the commencement of school the next day, in the event that [X]’s birthday falls on a weekend that is not the mother’s weekend, then the weekend be swapped and [X] spend her birthday weekend with the mother; and

(f) from the conclusion of school on Friday before the Applicant’s and Respondent’s birthday until Sunday at 7.00pm.

If any of the following fall during the father’s time with [X], the father’s time with [X] be suspended and [X] spend time with the mother as follows:

(a) from the conclusion of school on Friday before Mother’s Day until the commencement of school on Monday;

(b) in the event that Easter does not fall during the first term school holidays, from after school on Easter Thursday until 5.00pm on Easter Monday in odd numbered years; and

In the event either parent’s birthday falls on a weekend that does not occur on a weekend, then [X] spend time with the parent whose birthday it is from after school Thursday (3.30pm) until 7.00pm Sunday. This time is to occur in lieu of [X]’s time with that parent the following weekend.

10.

The mother be and is hereby restrained from having the child attend a counsellor or psychologist without the written agreement of the father.

11.

All communication between the father and the mother must be civil and child focussed at all times.

12.

The parties each notify the other and provide particulars of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of said change.

Education

13.

Each party is at liberty to attend [X]’s school and extracurricular activities that parents are ordinarily permitted to attend including but not limited to parent-teacher interviews, concerts and competitions.

14.

The parties each authorise [X]’s school(s) to provide to the other copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews, copies of school photographs and order forms and any information which is relevant to the [X]’s education.

15.

The parties each include the other's contact details on any school forms or extra-curricular activity forms related to the [X] where applicable.

16.

Each party be permitted to provide a copy of these Orders to any school which the child may attend from time to time.

Health

17.

The parties each keep the other informed as soon as practicable and provide details of any significant injury or illness suffered by [X] while she is in their respective care.

18.

Save for an emergency, each party inform the other of any appointments arranged for [X], to attend upon any medical specialist or allied health professional prior to the appointment occurring, with the party arranging the appointment to inform the other as to the time and date of that appointment as soon as reasonably possible.

19.

The parties each be permitted to liaise directly with [X]’s treating medical practitioner, dental or other health specialist in relation to [X]’s health and welfare and each parent be permitted to attend any medical or allied health appointment or hospital medical facility at which [X] may be being cared for.

20.

Where a party is unable to attend any medical or allied health appointment with respect to [X], the attending party is to inform the other as to any diagnosis and / or treatment plan recommended.

Overseas travel

21.

Each party be permitted to travel with [X] either interstate or internationally (to Hague Convention countries only) with such holidays to coincide with the school holidays in the State of Victoria, subject to the travelling party complying with paragraph 22 of these Orders.

22.

The party intending to take [X] overseas shall provide the other party with not less than 28 days prior written notice and particulars of the proposed date of departure and their intended travel destination(s) including copies of the following:

(a) departure and return air tickets for [X];

(b) itineraries for the proposed travel including contact telephone numbers and addresses for each destination; and

23.

The party intending to take [X] overseas shall ensure the following and provide the necessary documentation (if any) evidencing same to the other parent upon request:

(a) [X] has received all necessary immunisations and medications required for travel to the nominated destination as advised by their General Practitioner with the costs of same to be borne by the travelling parent; and

(b) the travelling party ensures that [X] be able to, and facilitate, contact with the other parent either by phone, skype, text or email at all reasonable times during overseas travel.

General

24.

The father, his servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and

(b) discussing these proceedings,

to or in the presence or hearing of [X] and from permitting any other person so to do.

25.

The mother, her servants and agents be and are hereby restrained by injunction from

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the father; and

(b) discussing these proceedings,

to or in the presence or hearing of [X] and from permitting any other person so to do.

26.

60 days immediately prior to the commencement of any time spent with [X] (including any period during which the [X] live with the father/the mother), and during all such time spent, the father and the mother be restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of alcohol or any legal or illegal drug or substance (or having a BAC above 0.05), save and except for:

(a) any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

27.

Leave be granted for the following documents to be available for production at the Court D Appeal (Padmore v Maclean Case)

(a) the affidavit of Ms Maclean sworn 10 January 2020; and

(b) the Child Inclusive Conference Memorandum dated 24 January 2019.

28.

All extant applications be otherwise dismissed.

29.

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 Annexure 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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