PAGGETT & CABLE - [2015] FamCA 173

FAMILY COURT OF AUSTRALIA

PAGGETT & CABLE

[2015] FamCA 173

FAMILY LAW – CHILDREN – Mother to have sole parental responsibility – Mother to consult with Father on major issues – allocation of time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Paggett

RESPONDENT:

Ms Cable

FILE NUMBER:

CAC

1013

2012

DATE DELIVERED:

17 March 2015

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

2 & 3 October 2013 & 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Claire Naidu & Associates

Orders

The mother, Ms Cable, will have sole parental responsibility for B, born … 2011.
(a) Notwithstanding the last mentioned order, the child’s mother will consult with her father about the child’s schooling and where she will attend school. Such consultation will occur either by telephone or by e-mail, unless the parties otherwise agree.
(b)Ultimately, if the parties cannot agree the mother will determine where the child will attend school but not so as to impose a financial burden upon the father additional to that which would be attributable to her attending a public school.
The mother will authorise and direct any school or educational facility which the child attends to provide upon request from the father and at his expense copies of all reports, notices and information about the child which the school may hold. The father may provide a copy of this Order to any such school or educational institution.
(a) B’s mother will advise the father about any medical practitioner or similar professional that the child consults. In addition, the child’s mother will authorise such practitioner or professional to provide information to the child’s father upon his request and at his expense.
(b)B’s mother will promptly inform the father about any serious illness or treatment that the child should incur or undergo and in the event of any medical treatment or medicine being prescribed for the child will inform the father and keep him informed of those requirements.
The mother will inform the father about her views in relation to the child’s diet and without being prescriptive in relation thereto indicate to the father what things the child likes and what the child’s mother believes are appropriate matters to be included in her diet. The child’s mother will not however complain that the father may deviate from such diet provided that such deviation is not in contradiction of any medical opinion provided to the father.
B will live primarily with her mother.
The child will be known by the names the B Paggett Cable. To the extent that such is not reflected on the official records the mother will do all such things as may be necessary to ensure that the records do reflect this Order and a copy of this Order may be provided to the relevant authorities to enable that to occur. The father may also inform the authorities in…

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 PAGGETT & CABLE

Details

AGLC: PAGGETT & CABLE [2015] FamCA 173
Case: [2015] FamCA 173
Decision Date: 17 March 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Faulks DCJ concerning the child B, born in 2011, and the respective responsibilities and time arrangements for her parents, Ms Cable (the mother) and Mr Paggett (the father). The dispute revolved around the terms of these orders, including parental responsibility, schooling, medical information, living arrangements, and time spent with each parent.

The court was required to determine the extent of sole parental responsibility for the mother, the specific arrangements for consultation and decision-making regarding the child's schooling, and the protocols for sharing medical and dietary information. Further issues included the primary residence of the child, the naming of the child, and the detailed schedule for the child's time with the father, encompassing weekends, school holidays, and special occasions like Christmas and birthdays. The court also addressed communication between the parents and the practicalities of handover arrangements.

The court's reasoning, as reflected in the orders, established that the mother would have sole parental responsibility for B, with specific provisions for consultation with the father on schooling matters, ultimately granting the mother the final decision-making power subject to financial constraints. The orders detailed how the father would receive information about B's schooling and medical care, and outlined a progressive increase in the time B would spend with her father, commencing with shorter periods and gradually extending to overnight stays and significant portions of school holidays. Provisions were also made for communication, including telephone calls, and for respectful handover procedures.

The final orders stipulated that B would live primarily with her mother, and detailed the specific times B would spend with her father, including every second Saturday and Sunday, and progressively longer periods during school holidays. The orders also addressed arrangements for Christmas Day, birthdays, and communication, and included provisions for the return of subpoenaed material.

Orders

Orders of the court

The mother, Ms Cable, will have sole parental responsibility for B, born … 2011.

(a) Notwithstanding the last mentioned order, the child’s mother will consult with her father about the child’s schooling and where she will attend school. Such consultation will occur either by telephone or by e-mail, unless the parties otherwise agree.

(b) Ultimately, if the parties cannot agree the mother will determine where the child will attend school but not so as to impose a financial burden upon the father additional to that which would be attributable to her attending a public school.

The mother will authorise and direct any school or educational facility which the child attends to provide upon request from the father and at his expense copies of all reports, notices and information about the child which the school may hold. The father may provide a copy of this Order to any such school or educational institution.

(a) B’s mother will advise the father about any medical practitioner or similar professional that the child consults. In addition, the child’s mother will authorise such practitioner or professional to provide information to the child’s father upon his request and at his expense.

(b) B’s mother will promptly inform the father about any serious illness or treatment that the child should incur or undergo and in the event of any medical treatment or medicine being prescribed for the child will inform the father and keep him informed of those requirements.

The mother will inform the father about her views in relation to the child’s diet and without being prescriptive in relation thereto indicate to the father what things the child likes and what the child’s mother believes are appropriate matters to be included in her diet. The child’s mother will not however complain that the father may deviate from such diet provided that such deviation is not in contradiction of any medical opinion provided to the father.

B will live primarily with her mother.

The child will be known by the names the B Paggett Cable. To the extent that such is not reflected on the official records the mother will do all such things as may be necessary to ensure that the records do reflect this Order and a copy of this Order may be provided to the relevant authorities to enable that to occur. The father may also inform the authorities in conformity with this Order.

Commencing on the next weekend on which the child would ordinarily spend time with her father the child will spend each second Saturday with her father from 10am until 5pm for two consecutive periods of time. (That is two weekends one fortnight apart.)

Thereafter the child will spend from 10am on Saturday until 5pm on Sunday with her father for a period of one year, on every second weekend.

10.

At the expiration of that year the child will spend from 9am on Saturday until 5pm on Sunday with her father every second weekend (unless the parties agree to extend that time).

11.

(a) In addition, the child will commence in 2016 to spend one week in each of the school holidays in the year (that is four holiday periods) with her father, unless the parties otherwise agree.

(b) In years ending in an even number or zero (unless the parties otherwise agree), the child will spend the first week of the school holidays with her father. In years ending in an odd number (unless the parties otherwise agree), the child will spend the second week of the school holidays with her father.

(c) The school holidays will be deemed to commence on the first Saturday after the last day on which the child is obliged to attend school and the second week (for years ending in an odd number) will commence on the second Saturday after the last day on which the child is obliged to attend school.

(d) The period that the child spends with her father will commence at 9am on the relevant Saturday and terminate at 9am on the following Saturday.

12.

The parties may agree about the time that the child spends with each of them on Christmas Day, however in default of agreement, the child if she is otherwise with her father will spend from noon on Christmas Day until 6pm on that day with her mother. If the child is not otherwise with her father on Christmas Day (this includes Christmas Day 2015) the child will spend from noon on Christmas Day until 5pm with her father.

B’s Birthday

13.

The parties may and should agree about the fact that each of the parents should spend some time with the child on her birthday. Unless the parties otherwise agree, the child will spend not less than two hours with the parent with whom she is not then living. This will be between the hours of 4pm and 6pm, unless the parties otherwise agree, on school days or between the hours of noon and 2pm on non-school days.

Parents’ birthdays

14.

The parents may and should agree about the child spending some time with each parent on his or her birthday if the child is not living with that parent on the relevant day. If the parents are unable to agree, the child will spend between 4pm and 6pm with that parent on a school day or between noon and 2pm on a day which is not a school day.

Telephone calls

15.

(a) B may telephone the parent with whom she is not living at any reasonable time. The parent with whom the child is then living will facilitate such telephone call and help the child to make the call if necessary.

(b) Nothing in these Orders prevents either parent from agreeing to an arrangement whereby each parent rings the child at a nominated time on a nominate day. However, unless the parents are able to reach agreement, no such order is made at this point.

16.

After 2016, if the parties wish to do so, the child may spend one half of the longer school holidays with her father. This is dependent upon her father being able to have leave to be with the child during this period.

17.

Nothing in the aforementioned orders requires any other person to be present when the child is with her father. However, until 2016, unless the parties otherwise agree, for the period from 5pm on the Saturday that the child is with her father on a weekend, until 9am on the following morning a member of the father’s family will be present in the house where the child and the father are sleeping.

18.

(a) Unless the parties otherwise agree, handovers in relation to any period that the child spends with her father will be carried out by the mother’s arranging for her mother or some other person to transport the child to the father and will so far as it is possible to do so accompany that person for such handovers.

(b) Further, unless the parties agree to the contrary, at the completion of the time that the child spends with her father, her father will return her personally to the child’s mother’s mother’s house (the maternal grandmother’s house).

(c) In respect of any handover each of the parents will be respectful and courteous to each other and will concentrate on ensuring that the transition of the child from one to the other is as friendly, cooperative and pleasant as it may reasonably be.

19.

Pursuant to s 62B and s 65DA(2), 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 parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

20.

All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

21.

Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

22.

The matter be removed from the Pending Cases Inventory.

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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