FEDERAL CIRCUIT COURT OF AUSTRALIA
| READ & MANNING | [2016] FCCA 889 |
| Catchwords: FAMILY LAW – Parenting – application for temporary relocation of child with mother to (country omitted) for 10-month period – application opposed by father – mother an (occupation omitted) of the (employer omitted) – mother the primary care-giver of the child since separation – both parties reside in different states – consideration of impact temporary relocation will have on child’s relationship with father and extended paternal family – consideration of impact separation from mother would have on the child in the circumstances of change of residence – mother offered security for child’s return to Australia – temporary relocation granted – child to otherwise reside with mother and spend time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 65DAA, 65DAC |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Patrick Parkinson, Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation (2008) 36 Federal Law Review 145 |
| Applicant: | MR READ |
| Respondent: | MS MANNING |
| File Number: | SYC 2493 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 3 – 5 February 2016 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hutchins |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr P. Glass |
| Solicitors for the Respondent: | Nicholes Family Law |
ORDERS
All previous parenting orders are discharged.
The parties have equal shared parental responsibility for the child X born (omitted) 2009 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)from 6.00 p.m. on Friday until 6.00 p.m. on Sunday on two weekends in each school term, the precise weekends to be agreed between the parties for the following year, no later than 10 December the year prior, with such weekends to include each New South Wales long weekend where practicable and exclude the mother’s birthday, Mother’s Day, Anzac Day weekend and Melbourne Cup weekend;
(b)for half of each school holiday period at the conclusion of terms 1, 2 and 3 each year, the precise times and dates to be agreed between the parties no later than 10 December the year prior, and in default of agreement as follows:
(i)for the second half of each school holiday period in 2016 and each alternate year thereafter (from 6.00 p.m. on the Friday of the first week of the holidays until 6.00 p.m. on the Friday of the second week of the holidays); and
(ii)for the first half of each school holiday period in 2017 and each alternate year thereafter (from 6.00 p.m. on the Friday of the last day of school until 6.00 p.m. on the Friday of the first week of the holidays).
(c)during the school holiday period at the conclusion of term 4 each year as follows:
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- Read and Manning [2016] FCCA 889
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- [2016] FCCA 889
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CaseChat Overview and Summary
The court was required to determine the terms of new parenting orders, including the allocation of parental responsibility, the child's primary residence, and the specific schedule for the child's time with each parent. Further issues included provisions for communication between the child and the non-resident parent, parental travel with the child, and financial security for the child's return. The court also considered orders restraining denigration of a parent and requiring completion of parenting courses.
Judge Wilson discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the mother, with detailed provisions for the child's time with the father, including weekends, school holidays, and communication. The court also made orders regarding overseas travel by the mother with the child, including a suspension of certain father-child time provisions during that period and specific return arrangements at the mother's expense. A security deposit was ordered to be lodged by the mother prior to overseas travel. The orders also included provisions for information sharing regarding the child's welfare, a restraint on denigration, and a requirement for both parties to complete parenting courses.
Orders
Orders of the court
1.
All previous parenting orders are discharged.
2.
The parties have equal shared parental responsibility for the child X born (omitted) 2009 (“the child”).
3.
The child live with the mother.
4.
The child spend time and communicate with the father as follows:
(a) from 6.00 p.m. on Friday until 6.00 p.m. on Sunday on two weekends in each school term, the precise weekends to be agreed between the parties for the following year, no later than 10 December the year prior, with such weekends to include each New South Wales long weekend where practicable and exclude the mother’s birthday, Mother’s Day, Anzac Day weekend and Melbourne Cup weekend;
(b) for half of each school holiday period at the conclusion of terms 1, 2 and 3 each year, the precise times and dates to be agreed between the parties no later than 10 December the year prior, and in default of agreement as follows:
(i) for the second half of each school holiday period in 2016 and each alternate year thereafter (from 6.00 p.m. on the Friday of the first week of the holidays until 6.00 p.m. on the Friday of the second week of the holidays); and
(ii) for the first half of each school holiday period in 2017 and each alternate year thereafter (from 6.00 p.m. on the Friday of the last day of school until 6.00 p.m. on the Friday of the first week of the holidays).
(c) during the school holiday period at the conclusion of term 4 each year as follows:
(i) in 2016/2017 and each alternate year thereafter, for the second half of the summer holiday period, commencing from 6.00 p.m. on the midpoint of the summer holiday period and concluding at 6.00 p.m. on the Friday of the last week of the summer holiday period; and
(ii)
in 2017/2018 and each alternate year thereafter, from
6.00 p.m. on Sunday of the week immediately preceding Christmas Day until 6.00 p.m. on the midpoint of the summer holiday period.
(d) when the father is in the city where the child resides, by agreement between the parties; and
(e) as otherwise agreed between the parties.
5.
The father be restrained from leaving the child in the sole care of MR A during any time the child is in his care.
6.
The child communicate with the parent with whom he is not otherwise living or spending time at least each Monday, Wednesday and Friday between 6.00 p.m. and 7.00 p.m. by telephone, Skype, Face Time, text or any other means.
7.
The parties agree to the other travelling overseas with the child upon the provision of two (2) weeks’ notice to the other party, with such time not to interfere with the other party’s time with the child, unless otherwise agreed between the parties in writing.
8.
The mother be permitted to travel with the child to (country omitted) between August 2016 and May 2017 (or such other time period as determined by the (employer omitted)) if given a position in the (country omitted) Court in (country omitted) by the (employer omitted).
9.
Order 4 of these Orders be suspended between August 2016 and May 2017 (or such other time period as determined by the (employer omitted)).
10.
While the child is in (country omitted) pursuant to Order 8 herein, the child return to Sydney to spend time with the father (at the mother’s expense) as follows:
(a) for a period of three weeks at the conclusion of Term 2 2016;
(b) from 7 October 2016 to 16 October 2016;
(c) from 28 December 2016 to 7 January 2017;
(d) from 30 January 2017 to 4 February 2017;
(e) from 1 April 2017 to 8 April 2017; and
(f) from 17 June 2017 to 14 July 2017.
11.
Prior to travelling to (country omitted) with the child pursuant to Order 8 herein, the mother shall deposit the sum of $20,000.00 by way of security for the return of the child, such sum to be held in an interest-bearing account in the name of the mother’s solicitors as trustee for the parties and such sum to be returned to the mother upon receipt by Chambers of a joint signed letter confirming that the child has been returned to Australia.
12.
The parties will keep each other informed about all information relevant to the child’s care, welfare and development, including but not limited to:
(a) each party is to keep the other fully informed in relation to all issues concerning the health of the child and each party is to notify the other as soon as practicable thereafter, upon the child attending upon any medical or health practitioner and in the event of an emergency each party is to inform the other without delay of the details of the emergency;
(b) each party shall provide to the other copies of all notices received from the child’s schools and details of all functions, parent/teacher nights and other activities to which parents are invited, as soon as practicable following receipt of such documents; and
(c) each party shall provide all necessary consents and authorities to any school at which and/or medical practitioner upon whom the child attends to ensure that both parents are authorised to communicate with the child’s school and treating practitioners at all times.
13.
Each party is hereby restrained from denigrating the other party, or any member of the other party’s family in the presence and/or hearing of the child.
14.
Both parties complete the courses ‘Tuning Into Kids’ and ‘Parenting Orders Program’.
15.
All extant applications are otherwise dismissed.
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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