Ramsland and Caffey - [2013] FCCA 2079

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSLAND & CAFFEY

[2013] FCCA 2079

Catchwords:
FAMILY LAW – Parenting – interim hearing – parental responsibility – equal time or substantial and significant time arrangement.

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA

Goode & Goode (2006) FLC 93-286
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MS RAMSLAND

Respondent:

MR CAFFEY

File Number:

SYC 5500 of 2013

Judgment of:

Judge Monahan

Hearing date:

13 November 2013

Date of Last Submission:

13 November 2013

Delivered at:

Sydney

Delivered on:

9 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Christie

Solicitors for the Applicant:

Dimocks Family Lawyers

Counsel for the Respondent:

Mr Blackah

Solicitors for the Respondent:

Swaab Attorneys

ORDERS

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

The Applicant (“the mother”) and the Respondent (“the father”) have equal shared parental responsibility for X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) ( collectively, “the children”).
Subject to paragraphs 3 to 5 herein, the children live with the mother.
During school terms the children live with the father in a fortnightly cycle as agreed or, failing agreement, as follows:
(a)Commencing immediately and continuing until the conclusion of Term 1 in 2014 as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Thursday;
(b)Commencing in the first week of Term 2 in 2014 until the conclusion of Term 3 in 2014 as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday;
(c)Commencing in the first week of Term 4 in 2014 and thereafter as follows:
(i)Week one: from after school/day care (or 3:00 pm if a non-school day) on Thursday until before school/day care (or 9:00 am if a non-school day) on Monday; and
(ii)Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday.
Paragraph 3 herein be suspended during all NSW gazetted school holiday periods (“school holidays”) and recommence in the first week of each school term.
In relation to school holidays, and failing agreement between the parties, the children live with the father as follows:
(a)in the 2013/2014 long summer school holidays, for at least three non-consecutive periods with each period being for not less than five nights as agreed, or failing agreement as follows:
(i)from Friday, 27 December 2013 at 11:00…

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 Ramsland and Caffey

Details

AGLC: RAMSLAND & CAFFEY [2013] FCCA 2079
Case: [2013] FCCA 2079
Decision Date: 9 December 2013

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Monahan in the Federal Circuit Court of Australia. The proceedings involved the mother and the father, who were seeking orders regarding the living arrangements and shared parental responsibility for their two children, X and Y.

The court was required to determine the specific arrangements for the children's residence, including the division of time between the parents during school terms and school holidays. Additionally, the court needed to establish protocols for communication between the children and the non-resident parent, and address specific educational and childcare arrangements for the children. The court also considered and dismissed interim applications made by both parties.

Judge Monahan made orders for equal shared parental responsibility, with the children to live with the mother. However, a detailed fortnightly cycle for the children to live with the father during school terms was established, with variations to this schedule commencing in different school terms. Specific arrangements were also made for school holidays, including a phased approach for the 2013/2014 summer holidays and subsequent holiday periods. The court also ordered that communication between the children and the non-resident parent be facilitated by telephone or electronic means, with nominated times and durations. Further orders addressed school enrolments, childcare arrangements, and mutual obligations regarding the exchange of personal information, notification of illness, and prohibitions against disparaging remarks or discussing proceedings in the presence of the children.

Orders

Orders of the court

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

The Applicant (“the mother”) and the Respondent (“the father”) have equal shared parental responsibility for X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) ( collectively, “the children”).

Subject to paragraphs 3 to 5 herein, the children live with the mother.

During school terms the children live with the father in a fortnightly cycle as agreed or, failing agreement, as follows:

(a) Commencing immediately and continuing until the conclusion of Term 1 in 2014 as follows:

(i) Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and

(ii) Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Thursday;

(b) Commencing in the first week of Term 2 in 2014 until the conclusion of Term 3 in 2014 as follows:

(i) Week one: from after school/day care (or 3:00 pm if a non-school day) on Friday until before school/day care (or 9:00 am if a non-school day) on Monday; and

(ii) Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday;

(i) Week one: from after school/day care (or 3:00 pm if a non-school day) on Thursday until before school/day care (or 9:00 am if a non-school day) on Monday; and

(ii) Week two: from after school/day care (or 3:00 pm if a non-school day) on Wednesday until before school/day care (or 9:00 am if a non-school day) on Friday.

Paragraph 3 herein be suspended during all NSW gazetted school holiday periods (“school holidays”) and recommence in the first week of each school term.

In relation to school holidays, and failing agreement between the parties, the children live with the father as follows:

(a) in the 2013/2014 long summer school holidays, for at least three non-consecutive periods with each period being for not less than five nights as agreed, or failing agreement as follows:

(i) from Friday, 27 December 2013 at 11:00 am until Monday 1 January 2014 at 5:00 pm;

(ii) from Thursday 9 January 2014 at 11:00 am until Tuesday 14 January 2014 at 5:00 pm; and

(iii) from Wednesday 22 January 2014 at 11:00 am until Monday 27 January 2014 at 5:00 pm; and

(b) in the April 2014 school holidays, for at least a six night period as agreed, or failing agreement from Sunday 20 April 2014 at 11:00 am until Saturday 26 April 2014 at 5:00 pm; and thereafter

(c) for one half of all school holiday periods as agreed or, failing agreement, the second half of all school holiday periods commencing in 2014 and each alternate year thereafter and the first half of all school holiday periods commencing in 2015 and each alternate year thereafter.

In relation to changeovers that do not occur at the children’s school/day care centre, changeovers occur at such place or places as agreed, or failing agreement, changeovers alternate between the (omitted), (or such other place as nominated by the mother in writing on reasonable notice) and (omitted), (or such other place as nominated by the father in writing on reasonable notice).

When the children are living with the mother she facilitate them communicating with the father by telephone (or by Skype or electronic equivalent) at such times as agreed between the parties and failing agreement, the father nominate in writing three evenings per week for this communication time to occur for a maximum 30 minute period between 4.00 pm and 7.00 pm.

When the children are living with the father for more than one night, he facilitate the children communicating with the mother by telephone at such times as agreed between the parties or, failing agreement, every second night with the mother to nominate in writing a maximum 30 minute time period between 4.00 pm and 7.00 pm for this communication time to occur.

In relation to paragraphs 7 and 8 herein, each party provide the other with their nominated communication times in writing within 72 hours of the date of these orders and thereafter if either party wishes to change their nominated times they provide the other party with at least 7 days written notice.

10.

In the event that the mother relocates her residence to (omitted) in January 2014, then the parties cause X to be enrolled in, and attend, (omitted) Public School.

11.

Subject to any agreement between the parties to the contrary, the parties are restrained from changing Y’s enrolment at (omitted) Day Care Centre (“the day-care centre”) and, should it be necessary, the parties are to re-enrol Y at the day care centre.

12.

The parties each:

(a) keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;

(b) advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended;

(c) be restrained from making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to either of the children or in the presence or hearing of either of the children, including verbal, written or electronic means including email and text message; and

(d) be restrained from discussing these proceedings with the children or in the presence or hearing of either of the children, such order to include verbal, written or electronic means including email or text message.

AND THE COURT ORDERS THAT:

13.

The Application in a Case filed by the father on 23 September 2013, the father’s interim orders in the Amended Response on 8 November 2013 and the interim orders sought by the mother in her Initiating Application filed 20 September 2013 (subject to the issue of the appointment of an Independent Children’s Lawyer) be dismissed.

AND THE COURT NOTES THAT:

(A) The parties were in agreement for the children to spend the night of 24 December 2013 with the father and 25 December 2013 with the mother.

(B) The Court did not not make any orders with respect to other special days, (such as birthdays, Mother’s Day or Father’s Day) or for the Christmas period in 2014 in this decision.

(C) The matter remains listed for mention hearing on 7 February 2014 and for a Child Dispute Conference on 11 December 2013 at 11:00am.

(D) The purpose of the mention hearing is to:

a. consider the memorandum produced from the Child Dispute Conference;

b. consider whether an Independent Children’s Lawyer should be appointed;

c. receive an update on the progress of the parenting arrangements;

d. receive an update on financial matters including whether the matter is appropriate to be referred to a Conciliation Conference; and

e. in the event that the parties remain in dispute, make further directions.

(E) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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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