PAINE & SEAFORD - [2013] FCCA 854

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAINE & SEAFORD

[2013] FCCA 854

Catchwords:
FAMILY LAW – Children – poor parental communication – parental responsibility – parents to attend mediation if unable to agree – school enrolment – overseas travel – all previous orders to be included.

CHILD SUPPORT – Departure order.

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

Child Support (Assessment) Act 1989

Goode & Goode (2006) FamCA 1346
Seaford & Paine-Seaford [2008] FMCAfam 922

Applicant:

MS PAINE

Respondent:

MR SEAFORD

File Number:

ADC 814 of 2007

Judgment of:

Judge Kelly

Hearing dates:

9 & 10 April 2013

Date of Last Submission:

10 April 2013

Delivered at:

Adelaide

Delivered on:

19 July 2013

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

PROPOSED ORDERS

Parental responsibility

The parties share equally in parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2003 SAVE as otherwise specified in these Orders and subject to paragraphs 2 and 3 herein.
The parties shall consult and endeavour to reach agreement about major long term issues in relation to the children’s care, welfare and development, such consultation to include participating in community based family dispute resolution.
In the event the parties have consulted in accordance with paragraph 2 and remain unable to agree upon a specific issue then the mother shall have sole parental responsibility in relation to the specific issue in dispute.
For the purposes of clarifying day to day parental responsibility the parent who delivers the children to school on any given morning retains parental responsibility for their day to day care until the conclusion of the school day.

Children’s living arrangements

[X] and [Y] live with the mother SAVE as otherwise specified in these Orders.
[X] and [Y] live with the father during school terms as follows:
(a)on alternate Thursdays from the conclusion of school (or 9.00am if a public holiday or a non school attendance day) until the commencement of school Friday (or 9.00am if a public holiday or a non school attendance day), recommencing on the second Thursday in each school term;
(b)on each alternate weekend from the conclusion of school Thursday (or 4.00pm if a public holiday or a non school attendance day) until the commencement of school Monday (or Tuesday in the event Monday is a public holiday or a non school attendance day), recommencing on the first Thursday in each school term;
[X] and [Y] live with the father for one half of each short school holiday period each year at times to be agreed between the parties and in default of agreement for the first half of each short school holiday period commencing at 6.00pm on the last day of school term and concluding at 6.00pm on the Saturday one week following.

Christmas School holidays

[X] and [Y] live with the father for one half of the Christmas school holiday period each year at times to be agreed between the parties and in default of agreement the children…

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.

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Details

Case: [2013] FCCA 854
Decision Date: 19 July 2013

CaseChat Overview and Summary

In the matter of *Paine & Seaford*, heard before Kelly J, the dispute concerned parenting arrangements for the parties' children, specifically relating to issues of parental communication, parental responsibility, school enrolment, and overseas travel. The court was also required to consider a departure application concerning child support.

The primary legal issues before the court were: first, whether the parents were able to communicate effectively regarding the children's welfare and, if not, what orders should be made to facilitate agreement; second, how parental responsibility should be allocated in relation to decisions about the children's schooling and overseas travel; and third, whether to grant a departure order in relation to child support.

Kelly J emphasised the importance of effective parental communication and ordered that the parents attend mediation if they were unable to agree on matters concerning the children. The court clarified that both parents would share parental responsibility for decisions regarding the children's education and overseas travel, with specific provisions for consultation and agreement. All previous orders made in relation to the children were to be incorporated into the new orders. The court also addressed the child support departure application.

Orders