Radley and Simson - [2019] FamCA 808

FAMILY COURT OF AUSTRALIA

RADLEY & SIMSON

[2019] FamCA 808

FAMILY LAW – CHILDREN – With whom a child lives – Where the mother seeks to relocate to the United Kingdom with the child – Where the father opposes – Where there are mutual allegations of family violence – Where the child has a strong relationship and attachment with both parents – Where it is unlikely that the child’s relationship with the father would be a meaningful relationship if relocation to the United Kingdom were permitted – Orders

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

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

APPLICANT:

Ms Radley

RESPONDENT:

Mr Simson

FILE NUMBER:

DNC

498

2016

DATE DELIVERED:

6 November 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

12 to 14 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Fraser

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Tippett QC

SOLICITOR FOR THE RESPONDENT:

Maley Barristers & Solicitors

Orders

That all current orders be discharged.
That the parties have equal shared parental responsibility for X born … 2014 (“the child”).
That the child live with the mother.
That the child spend time with the father:-
(a)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday commencing 7 November 2019.
(b)For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate year thereafter and for the second half of the school holiday period in 2020 and in each alternate year thereafter;
(c)For such other times as the parties may agree.
That the child spend time with the parties as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the child will spend time with the mother;
(ii)Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the child will spend time with the father;
(b) On the child’s birthday 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 2.00 pm until 7.00 pm;
(ii)If the child’s birthday falls on a day that is not a school day and the mother would not otherwise be spending time with the child then the child will spend time with the mother from 2.00 pm until 7.00 pm;
(iii)If the child’s birthday falls on a…

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 Radley and Simson

Details

AGLC: Radley and Simson [2019] FamCA 808
Case: [2019] FamCA 808
Decision Date: 6 November 2019

CaseChat Overview and Summary

This matter concerned the parenting arrangements for a child, X, born in 2014, between the mother and the father. The proceedings were before Berman J.

The court was required to determine the orders concerning the parental responsibility for the child, the living arrangements for the child, and the time the child would spend with each parent. This included detailed provisions for regular time, school holidays, special days such as birthdays and Christmas, and arrangements for overseas travel and communication between the parents.

Berman J ordered that the parties have equal shared parental responsibility for the child. The child was to live with the mother, and specific arrangements were made for the child to spend time with the father, including alternate weekends, half of each school holiday period, and specific times on Mother's Day, Father's Day, and the child's birthday. Further orders addressed the Christmas period, the exchange of information regarding the child's health and education, overseas travel, and communication protocols between the parents.

Orders

Orders of the court

That all current orders be discharged.

That the parties have equal shared parental responsibility for X born … 2014 (“the child”).

That the child live with the mother.

That the child spend time with the father:-

(a) Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday commencing 7 November 2019.

(b) For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate year thereafter and for the second half of the school holiday period in 2020 and in each alternate year thereafter;

That the child spend time with the parties as follows:-

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

(i) Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the child will spend time with the mother;

(ii) Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the child will spend time with the father;

(b) On the child’s birthday 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 2.00 pm until 7.00 pm;

(ii) If the child’s birthday falls on a day that is not a school day and the mother would not otherwise be spending time with the child then the child will spend time with the mother from 2.00 pm until 7.00 pm;

(iii) If the child’s birthday falls on 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 the conclusion of school until 6.30 pm;

(iv) If the child’s birthday falls on a school day and the mother would not otherwise be spending time with the child then the child will spend time with the mother from the conclusion of school until 6.30 pm.

(i) With the father from 3.00 pm on 25 December 2019 to 3.00 pm on 26 December 2019 and each alternate year thereafter PROVIDED HOWEVER that the said child shall be with the mother from 3.00 pm on 24 December 2019 to 3.00 pm on 25 December 2019 and each alternate year thereafter;

(ii) With the mother from 3.00 pm on 25 December 2020 to 3.00 pm on 26 December 2020 and each alternate year thereafter PROVIDED HOWEVER that the child shall be with the father from 3.00 pm on 24 December 2020 to 3.00 pm on 25 December 2020 and each alternate year thereafter.

That the father’s time with the child as set out in Order 4(a) herein shall be suspended during all periods of school holidays.

That the parties be at liberty to attend the child’s kindergarten and/or school for parent/teacher meetings, concerts and all functions to which parents are usually invited.

That the parties shall be at liberty to receive copies of the child’s school reports, school photographs and other information usually provided to parents.

That the mother will provide to the father reports with respect to the health and special needs of the child as may be requested by the father and he shall be at liberty to contact the child’s therapists, general medical practitioner or specialist medical practitioners or allied health professionals PROVIDED that such contact and communication shall be at the father’s expense.

10.

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

(a) The party requesting the holiday time shall provide twenty eight (28) days written notice to other party;

(b) Both parties consent in writing to occur if some or all of the proposed periods do not coincide with school holidays;

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

(d) That in the Christmas school holiday period commencing 2020 and each alternate year thereafter the father at his election can seek the child’s time with him to be extended to thirty (30) days;

11.

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

(a) An itinerary;

(b) Flight and accommodation details;

12.

That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.

13.

That the parties shall sign all such documents as may be required by the Australian Federal Police to enable the child to travel outside the Commonwealth of Australia.

14.

That the mother shall retain the child’s passport or passports in her possession.

15.

That the parties will communicate by the online Family Wizard app or such other agreed social media technology or Outlook email to keep each party up to date with the child’s routine, sleep times, food issues (allergies) and other matters pertaining to the child’s welfare and development.

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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