Quigley and Quigley - [2016] FCCA 463

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUIGLEY & QUIGLEY

[2016] FCCA 463

Catchwords:
FAMILY LAW – Parenting – Child aged 8 living with his father in (omitted) – where the mother relocated to (omitted) in August 2014 for the purposes of obtaining employment – whether the child should live with the mother in (omitted) or with the father in (omitted) – where the mother is the warmer and more nurturing parent and the child is missing his mother – order made that the child live with the mother in (omitted).

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

AMS & AIF (1999) FLC 92-852
Heaton & Heaton [2012]FamCAFC 139

Mazorski & Allbright (2007) 37 Fam LR 518
MRR & GR (2010) 42 Fam LR 531

Applicant:

MS QUIGLEY

Respondent:

MR QUIGLEY

File Number:

NCC 595 of 2015

Judgment of:

Judge Terry

Hearing date:

11 & 12 February 2016

Date of Last Submission:

15 February 2016

Delivered at:

Newcastle

Delivered on:

15 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Mullane & Lindsay

Counsel for the Respondent:

Ms Flintoff

Solicitors for the Respondent:

Walker Legal

ORDERS

The parents have equal shared parental responsibility for the child X born (omitted) 2007.
The child live with the mother
The child shall spend time with the father:
(a)each alternate weekend during school terms from 8.00pm on Friday until 7.00pm on Sunday;
(b)during school school holiday periods:
(i)for half of all school holidays, being the first half of the school holidays commencing in odd numbered years and the second half of the school holidays commencing in even numbered years;
(ii)the first half of school holidays commences at 8.00pm on the last day of the preceding school term and ends at 12.00 noon on the middle day if the school holiday is an odd number of days, and at 9.00am on the first day after the middle midnight if the school holidays are an even number of days;
(iii)the second half of the school holidays commences at the conclusion of the first half and second half concludes at 8.00pm the day before the child is due to return for the commencement of the following school term.
(c)from 8.00pm on 23 December until 7.00pm 26 December in 2017 and each odd numbered year thereafter;
(d)such additional or alternate time as the parties may agree.
In the event that the father will be in the (omitted) area, he is at liberty to spend time with the child during any periods that the mother is working subject to the father providing the mother with no less than 5 days notice of his intention to do so and unless otherwise agreed between the parents in writing, this order shall be implemented by the father collecting the child from the mother’s home at the commencement of the spend time with period and returning the child to the mother’s home at the conclusion of the spend time with period.
If Father’s Day falls on a weekend when…

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 Quigley and Quigley

Details

AGLC: Quigley and Quigley [2016] FCCA 463
Case: [2016] FCCA 463
Decision Date: 15 February 2016

CaseChat Overview and Summary

In *Quigley and Quigley*, heard before Judge Terry, the dispute concerned parenting arrangements for the child, X. The mother sought for X to live with her in a new location, while the father proposed that X live primarily with him.

The court was required to determine the best interests of the child, X, by considering various factors under section 60CC of the *Family Law Act 1975* (Cth). This included the child's maturity, sex, and background, the parents' attitudes to their responsibilities, the child's relationship with each parent, the child's past experiences, and the likely effect of any proposed change in the child's circumstances. The court also had to assess the extent to which each parent had taken the opportunity to spend time with X and make decisions about him, and their respective capacities to provide for X's needs.

Judge Terry reasoned that while both parents demonstrated a desire to be involved in X's life, the father's actions surrounding the mother's relocation had caused confusion and difficulty for X. The court found no evidence to support the father's allegations that the mother was motivated by financial gain in seeking X to live with her. The judge noted that children can adapt to change with appropriate parenting.

The court ordered that the parents have equal shared parental responsibility for X, with X to live with the mother. Specific arrangements were detailed for X to spend time with the father, including alternate weekends, half of all school holidays, and specific Christmas periods. The orders also addressed communication between parents and child, school enrollment, and parental involvement in school activities.

Orders

Orders of the court

The parents have equal shared parental responsibility for the child X born (omitted) 2007.

The child live with the mother

The child shall spend time with the father:

(a) each alternate weekend during school terms from 8.00pm on Friday until 7.00pm on Sunday;

(b) during school school holiday periods:

(i) for half of all school holidays, being the first half of the school holidays commencing in odd numbered years and the second half of the school holidays commencing in even numbered years;

(ii) the first half of school holidays commences at 8.00pm on the last day of the preceding school term and ends at 12.00 noon on the middle day if the school holiday is an odd number of days, and at 9.00am on the first day after the middle midnight if the school holidays are an even number of days;

(iii) the second half of the school holidays commences at the conclusion of the first half and second half concludes at 8.00pm the day before the child is due to return for the commencement of the following school term.

(d) such additional or alternate time as the parties may agree.

In the event that the father will be in the (omitted) area, he is at liberty to spend time with the child during any periods that the mother is working subject to the father providing the mother with no less than 5 days notice of his intention to do so and unless otherwise agreed between the parents in writing, this order shall be implemented by the father collecting the child from the mother’s home at the commencement of the spend time with period and returning the child to the mother’s home at the conclusion of the spend time with period.

If Father’s Day falls on a weekend when the child would otherwise be with the mother then the weekends shall be swapped so that the child shall spend the Father’s Day weekend with the father and the following weekend with the mother.

If Mother’s Day falls on a weekend when the child would otherwise be with the father the weekends shall be swapped so that the child spends the Mother’s Day weekend with the mother and the following weekend with the father.

Despite anything in the above orders the child’s time with the father is suspended from 8.00pm on 23 December 2016 until 8.00pm on 26 December 2016 and each even numbered year thereafter.

Unless otherwise agreed between the parents the child’s time with the father shall be facilitated by the mother, or a nominee known to the child, driving the child to the father in (omitted) at the commencement of the time and the father, or a nominee known to the child, driving the child back to the mother in (omitted) at the conclusion of the time.

Each parent will facilitate the reasonable and uninterrupted communication of the other party with the child by means of telephone, email or Internet based communication during the times that the child lives with or spends time with the first parent.

10.

Unless otherwise agreed by the parents, the child shall communicate with the father by Skype on Sunday evenings on the weekends that the child does not spend with the father in (omitted), failing agreement, between 6.00 pm and 7.00 pm.

11.

The parents shall keep each other informed of their current residential address, home telephone number, mobile telephone number and email address and shall provide to the other not less than 24 hours notice of any change of address or telephone number.

12.

Within 7 days of the date of the orders both parents do all acts and things and sign all documents necessary for the child to be enrolled in and attend at The (omitted) Primary School.

13.

Each parent may obtain from the children’s school(s) copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents and may attend any event at the school(s) normally attended by parents including parent-teacher interviews, sports days or assemblies regardless of whether or not at the time of these events the children are spending time with them pursuant to these orders.

Background

Background to the litigation

The next consideration is the child’s maturity, sex and background. X is (nationality omitted) through the mother and the mother wants him to learn (language omitted) but regardless of whether X lives with her or lives with the father he can keep in touch with his (nationality omitted) heritage so that does not assist me to determine an outcome. X is almost nine. He is doing okay at school; he is in the middle academically it would appear. The mother’s counsel demonstrated during cross-examination of the father that his results fluctuate. There is nothing to suggest, when you have a look at all the school reports, that he has been doing better academically since living with the father. A concern was expressed in X’s last report about him isolating himself in the playground. It is hard to know what to make of that. It could be related to missing the mother. It could be to do with Pokémon cards as Ms G suggested. It could be for some reason nobody knows about. I cannot place too much weight on the fact that this is happening because it is impossible to know why it is happening. The other issue particular to X is that he is (religion omitted) through the mother but Ms G is also (religion omitted) and she supports that. The father is not religious but he is content for the child to be brought up in the (religion omitted) religion. I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. The mother is not to be criticised for wanting to move. It does not mean that she is not thinking of X. Parents sometimes have to make sacrifices for their children but parents also need to be settled and happy and to have employment opportunities. The fact that a parent wants to move does not mean that they are showing a bad attitude to their child. Mr P commented on this in his report and said as follows:It is the view of the family consultant that the mother’s move to (omitted) from (omitted) was conducted in a measured way not only in consultation with the father, but, importantly, with a view to increasing Ms Quigley’s fulltime work opportunities thus providing X with an enhanced lifestyle.[10][10] Family Report paragraph 16 There was a suggestion by Ms G in a text message sent in 2014 that the mother had decided to move after the father and Ms G suggested equal time, but the mother rejected that suggestion then and it was not raised as an issue at trial. I have some concerns, and this issue was referred to by the mother’s counsel in submissions, about the father’s actions around the relocation. I can understand the father not wanting his son to leave (omitted). The father places a high level of importance on work and he works hard but he also loves his son and he wants to spend time with him and it is difficult for a parent to see their child just go off out of the locality where they are living. But the reality of what happened was that the father initially agreed to X moving to (omitted) with the mother. He agreed to X spending orientation days at a new school. X as well as the mother expected the move to occur by the beginning of the 2015 school year and then four or five months after the father agreed to it he said no, and that must have been confusing and difficult for X.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I must consider the extent to which each parent has taken the opportunity to spend time with the child and make decisions about the child. Each parent has always wished to be part of the child’s life and to be part of decision-making about him. The mother has spent every moment she can with X since relocating. The father and Ms G were critical of her for not taking more weekends off but I do not consider that this is a valid criticism. The father suggested that there were occasions when the mother turned up in (omitted) not out of concern for X but for appearance’s sake. There was not a shred of evidence to support this assertion and it is a manifestation of the father’s unnecessarily negative view of the mother. I will not assist me to delve in detail into the issue of who did what on the day of the child’s confirmation. I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child. The father complained that the mother did not pay child support between August and December 2014 but on the state of the evidence I cannot make an adverse finding about her in relation to that. She is currently assessed to pay, and does pay, child support. Ms G and the father both expressed the view in their affidavits that the mother wanted X to live with her so that she could get more money. The father said as follows: I truly believe that Ms Quigley is motivated to have X live with her because she will be better off financially. Not only would she have to work less, but she would receive maintenance payments and, as a sole parent, she would also receive rental assistance and full family tax benefit.[5][5] Father’s affidavit paragraph 114 There is not a shred of evidence to support a finding that the mother is motivated by any child support or monetary considerations in wishing X to live with her in (omitted). These allegations are another manifestation of the negative view the father has of the mother at present. I must consider the likely effect of any change in the child’s circumstances. Both parents propose a change. The mother proposes that X live with her in (omitted) which is clearly a change but the father proposes that the child live primarily with him which will be a change from what has been the case for a good part of the child’s life. I have to decide which change is to be preferred but I cannot do so until I make findings about the remaining s.60CC (3) matters. I do note that children can adapt to change. They can adapt to a change in primary parent if need be. They can adapt to a change of place. If they have the right parenting they can adapt. I should refer here also to the alternative proposal put forward by the mother namely that if I was not willing to order that X live with her in (omitted) she would return to live in (omitted). I am concerned that this might turn out to be a problematic outcome not only for the mother but for X. The mother moved to (omitted) because she could not find the kind of work she wanted in (omitted). If she again bases herself in (omitted) she will have to look for work outside (omitted), perhaps in (omitted) or in (omitted). She will have to travel at least half an hour each way, perhaps an hour each way, to get to work. Given the industry in which she works she will almost certainly still have to do afternoon and night work and she will still require outside assistance to help her care for X.

Ratio Decidendi

Legal Principle Established

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