Price and Caldwell - [2009] FamCA 946

FAMILY COURT OF AUSTRALIA

PRICE & CALDWELL

[2009] FamCA 946

FAMILY LAW – CHILDREN – Relocation

APPLICANT:

Mr Price

RESPONDENT:

Ms Caldwell

FILE NUMBER:

TVC

688

2008

DATE DELIVERED:

5 October 2009

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Monteith J

HEARING DATE:

8, 9, 10 & 11 Sept 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mayes

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Mr Honchin

SOLICITOR FOR THE RESPONDENT:

Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ruddy Tomlins and Baxter

Orders

That the child, A, born … January 2007, live with the father in Townsville subject to paragraph 3 hereof.
That the father and the mother have equal shared parental responsibility for the said child.
If the mother relocates to live in Townsville, then the child shall live with the mother and the father on a week about basis, commencing each Friday at 5.00 pm on the week that the father spends time with L.
If the mother remains living in Brisbane, then the child will spend time with the mother as agreed, but failing agreement as follows:
(a)Each of the school holidays except Christmas with the parties to share the costs of travel of the child and accompanying adult equally;
(b)For four weeks of the Christmas school holidays, with the parties to share the costs of travel of the child and accompanying adult equally, with the mother to have the first four weeks in 2009 and every second year thereafter, and the last four weeks in 2010 and every second year thereafter;
(c)Upon giving 14 days notice to the father, in Townsville for up to 14 consecutive days, at the mother’s costs.
Notwithstanding anything else in these orders, but subject to paragraph 4 hereof:-
A. The father is to spend time with the child:
(a)From 9.00 am to 6.00 pm on Father’s Day;
(b)On the child’s birthday for 2 hours at a time to be agreed;
(c)On each of the child’s siblings’ birthdays for 2 hours, at a time to be agreed;
(d)On the father’s birthday for 2 hours at a time to be agreed.
B.The mother is to spend time with the child:
(a)From 9.00 am to 6.00 pm on Mother’s Day;
(b)On the child’s birthday for 2 hours at a time to be agreed;
(c)On the mother’s birthday for 2 hours at a time to be agreed.
Each parent is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.
Each parent will abstain from using any illegal drugs whilst the child is in their care and will not allow the child to remain in the presence of any person using illegal drugs.
Neither parent will use alcohol to excess when the child is in their care, nor allow any person to use alcohol to excess in the presence of the child.
Neither parent will smoke…

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 Price and Caldwell

Details

AGLC: Price and Caldwell [2009] FamCA 946
Case: [2009] FamCA 946
Decision Date: 5 October 2009

CaseChat Overview and Summary

The case of *Price and Caldwell* concerned parenting orders made by Monteith J in relation to a child born in January 2007. The dispute centred on the living arrangements and time spent with the child between the father, who resided in Townsville, and the mother, who resided in Brisbane. The court was required to determine the specific orders regarding where the child would live, the nature of parental responsibility, and the detailed arrangements for the child to spend time with each parent, particularly in light of the mother's potential relocation to Townsville.

Monteith J made orders establishing equal shared parental responsibility for the child. The primary residence of the child was ordered to be with the father in Townsville. However, the orders provided for a significant shift in living arrangements if the mother relocated to Townsville, stipulating a week-about living arrangement. If the mother remained in Brisbane, detailed provisions were made for the child to spend time with her during school holidays, including provisions for travel costs and specific periods for Christmas holidays. The court also made specific orders regarding the father and mother spending time with the child on significant dates such as birthdays and Father's/Mother's Day, and included standard orders restraining denigration, prohibiting illegal drug use, regulating alcohol consumption, and prohibiting smoking in enclosed spaces in the child's presence. Further orders mandated consultation between parents on major decisions, regular communication between the child and the non-resident parent, and attendance at mediation for future disputes.

Orders

Orders of the court

That the child, A, born … January 2007, live with the father in Townsville subject to paragraph 3 hereof.

That the father and the mother have equal shared parental responsibility for the said child.

If the mother relocates to live in Townsville, then the child shall live with the mother and the father on a week about basis, commencing each Friday at 5.00 pm on the week that the father spends time with L.

If the mother remains living in Brisbane, then the child will spend time with the mother as agreed, but failing agreement as follows:

(a) Each of the school holidays except Christmas with the parties to share the costs of travel of the child and accompanying adult equally;

(b) For four weeks of the Christmas school holidays, with the parties to share the costs of travel of the child and accompanying adult equally, with the mother to have the first four weeks in 2009 and every second year thereafter, and the last four weeks in 2010 and every second year thereafter;

Notwithstanding anything else in these orders, but subject to paragraph 4 hereof:-

A. The father is to spend time with the child:

(a) From 9.00 am to 6.00 pm on Father’s Day;

(b) On the child’s birthday for 2 hours at a time to be agreed;

(d) On the father’s birthday for 2 hours at a time to be agreed.

B. The mother is to spend time with the child:

(a) From 9.00 am to 6.00 pm on Mother’s Day;

(b) On the child’s birthday for 2 hours at a time to be agreed;

Each parent is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.

Each parent will abstain from using any illegal drugs whilst the child is in their care and will not allow the child to remain in the presence of any person using illegal drugs.

Neither parent will use alcohol to excess when the child is in their care, nor allow any person to use alcohol to excess in the presence of the child.

Neither parent will smoke in an enclosed area, including a motor vehicle, or allow any other person to do so when the child is present.

10.

The parents shall consult with each other about decisions to be made in the exercise of their equal shared responsibility.

11.

The parents will ensure that the child communicates regularly with the other parent at all reasonable times by telephone.

12.

If a future dispute arises over the parenting arrangements of the child, both parties will attend mediation prior to commencing any proceedings in a State or Federal Court.

13.

Liberty to apply.

14.

Pursuant to s.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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.