Pfaff and Rilling - [2018] FamCA 904

FAMILY COURT OF AUSTRALIA

PFAFF & RILLING

[2018] FamCA 904

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where a party seeks to be permitted to relocate to another country with the children – Where relocation is opposed – Best interests of the child – Meaningful relationship – Where the relocating is the primary care giver – Whether the relocating parent’s ability to parent the children would detrimentally impacted by remaining in Australia – Where the tyranny of distance could endanger the children’s relationship with the non-relocating parent – Whether the relocating parent can appropriately support the children’s relationship with the non-relocating parent.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Pfaff

RESPONDENT:

Ms Rilling

FILE NUMBER:

ADC

4247

2015

DATE DELIVERED:

8 November 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 - 21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bowler

SOLICITOR FOR THE APPLICANT:

Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT:

Litigant in Person

Orders

That all previous parenting orders be discharged.
That the parties have shared parental responsibility for X born … 2010 and Z born … 2013 (“the children”) subject to paragraph (3) hereunder.
That the mother have sole parental responsibility in respect of health issues and the education of the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including dental) and their education and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
That the children live with the mother.
That the children spend time with the father as follows:-
(a)During the school term: on each alternate weekend from the conclusion of school (or childcare/early learning) or 3 pm if a non-school day on Friday to the commencement of school (or childcare/early learning) or 9 am if a non-school day on Monday;
(b)During the school term: in the intervening week from the conclusion of school (or childcare/early learning) or 3pm if a non-school day Thursday to the commencement of school (or childcare/early learning) or 9 am on Friday;
(c)For one half of the short end of term school holidays and for one half of the Christmas long school holidays.
That the children spend time with the parties on special occasions as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day the…

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 Pfaff and Rilling

Details

AGLC: Pfaff and Rilling [2018] FamCA 904
Case: [2018] FamCA 904
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the matter of Pfaff and Rilling, Berman J considered an application concerning parenting orders for two children, X and Z. The dispute centred on the arrangements for the children's care, living arrangements, and parental responsibility following the discharge of previous orders.

The court was required to determine the appropriate orders for shared parental responsibility, the specific allocation of responsibility for health and education matters, the children's primary residence, and the time the children would spend with each parent. This included establishing a detailed schedule for weekend and weekday time, school holidays, and special occasions such as birthdays, Mother's Day, Father's Day, and Christmas. The court also had to consider provisions for overseas travel and the exchange of information regarding the children's health and education.

Berman J ordered the discharge of all previous parenting orders. Shared parental responsibility was established for the children, with the mother retaining sole responsibility for health and education issues, subject to a requirement to consult with the father and provide him with written notification of her final decisions if agreement could not be reached. The children were ordered to live with the mother, with specific provisions for time spent with the father, including alternate weekends, an intervening weekday, and half of the short and Christmas school holidays. Further orders detailed arrangements for special occasions and annual overseas holidays, including notice requirements and the provision of itinerary and contact details. The mother was also directed to inform the father of the identity and contact details of health professionals involved in the children's care and to authorise communication and information release to him. Similarly, schools were authorised to provide the father with copies of reports, notices, and other requested information at his expense.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the parties have shared parental responsibility for X born … 2010 and Z born … 2013 (“the children”) subject to paragraph (3) hereunder.

That the mother have sole parental responsibility in respect of health issues and the education of the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including dental) and their education and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.

That the children live with the mother.

That the children spend time with the father as follows:-

(a) During the school term: on each alternate weekend from the conclusion of school (or childcare/early learning) or 3 pm if a non-school day on Friday to the commencement of school (or childcare/early learning) or 9 am if a non-school day on Monday;

(b) During the school term: in the intervening week from the conclusion of school (or childcare/early learning) or 3pm if a non-school day Thursday to the commencement of school (or childcare/early learning) or 9 am on Friday;

That the children spend time with the parties on special occasions as follows:-

(a) On Mother’s Day and Father’s Day in each year:-

(i) Between 5 pm on the Saturday preceding Mother’s Day until 5 pm on Mother’s Day the children will spend time with the mother;

(ii) Between 5 pm on the Saturday preceding Father’s Day until 5 pm on Father’s Day the children will spend time with the father.

(b) On the children’s birthdays in each year:-

(i) If the child’s birthday falls on a day that is not a school day and the father would not otherwise be spending time with the child then the child will spend time with the father from 2 pm until 7 pm;

(ii) If the child’s birthday falls on a day that is not a school day and the father has the care of the child then the child will spend time with the mother from 2 pm until 7 pm;

(iii) If the child’s birthday falls on a school day and the father would not otherwise have the care of the child then the child will spend time with the father from the conclusion of school until 6.30 pm;

(iv) If the child’s birthday falls on a school day and the father has the care of the child then the child will spend time with the mother from the conclusion of school until 6.30 pm.

(i) In 2018 and in each alternate year thereafter the children will spend time with the father between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December;

(ii) In 2019 and in each alternate year thereafter the children will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the father between 3 pm on 25 December until 3 pm on 26 December.

(d) Such other times as may be agreed between the parties.

That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-

(a) The party requesting the holiday time provide forty two (42) days written notice to the other party;

(b) Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;

(c) That in the Christmas school holidays commencing 2019 and each alternate year thereafter the mother at her election can seek that the children’s time with her shall be extended to thirty (30) days;

(d) That in the Christmas school holidays commencing 2020 and each alternate year thereafter the father at his election can seek that the children’s time with him shall be extended to thirty (30) days.

When giving notice of any intended overseas holiday each party shall provide the other with the following information:-

(a) An itinerary;

(b) Flight and/or accommodation details;

That the mother shall inform the father of the identity and contact details of any health professional (including dental) involved with the children’s care and shall authorise the health professionals to communicate with the father and to release any information to him as he may request.

10.

That the mother authorise any school at which the children attend to provide copies of school reports, school notices, school newsletters and school photos of the children (at the father’s expense) to be provided to him and such other information as he may request.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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