Ready and Ready - [2020] FamCA 6

FAMILY COURT OF AUSTRALIA

READY & READY

[2020] FamCA 6

FAMILY LAW – CHILDREN – International Relocation – where the mother seeks the children, aged eight and five years relocate to live with her in Ireland – where the father opposes the relocation – where relocation of the children to Ireland is found to be in the children’s best interests

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172
Cox & Pedrana (2013) FLC 93-537
H & H [2005] FamCA 805
McCall v Clark (2009) FLC 93-405
Morden & Coad [2019] FamCAFC 233
U v U (2002) 211 CLR 238
Vigano v Desmond (2012) FLC 93-509

APPLICANT:

Ms Ready

RESPONDENT:

Mr Ready

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

PAC

2441

2017

DATE DELIVERED:

13 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

18 and 19 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Simpson Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Selfridge

SOLICITOR FOR THE RESPONDENT:

Ramsden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All parenting plans and previous parenting orders are discharged.
The children, X, born … 2011 and Y, born … 2014 live with the mother.
The mother is at liberty to relocate the children to live with her in Ireland at any time after giving the father no less than fourteen (14) days’ notice in writing of her intention to do so.
The parents have equal shared parental responsibility for the major long term issues of the children, including but not limited to:
(a)       the children’s future education; and
(b)       the children’s religious and cultural upbringing; and
(c)       the children’s health; and
(d)any changes to the living arrangements that make it significantly more difficult for the children to spend time with each party.
The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other party about the decision proposed to be made; and
(b)each shall consult with the other with the view to reaching terms upon which they may agree; and
(c)each shall make a genuine effort to come to a joint decision with the other party.
Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.
Until the children depart Australia for Ireland, they will spend time with the father at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a)       in week 1: from 5.30 pm Thursday to 7.00 Sunday; and
(b)       in week 2: from 5.30 pm Thursday to 5.30 pm Friday; and
(c)       for half of all school holidays.
Upon the children living…

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 Ready and Ready

Details

AGLC: Ready and Ready [2020] FamCA 6
Case: [2020] FamCA 6
Decision Date: 13 January 2020

CaseChat Overview and Summary

In the matter of *Ready and Ready*, Hogan J of the Family Court of Australia made final orders concerning the parenting arrangements for two children, X and Y. The dispute involved the children's residence, relocation, and the division of parental responsibilities and time between the mother and father.

The court was required to determine the primary residence of the children, whether the mother should be permitted to relocate the children to Ireland, and the nature of the parties' parental responsibility and the time the children would spend with each parent. The court also had to consider the practical arrangements for communication, information sharing, and the children's welfare, including their ongoing counselling.

Hogan J discharged all previous parenting plans and orders, ordering that the children live with the mother. The mother was granted liberty to relocate the children to Ireland, subject to providing the father with 14 days' written notice. The parties were ordered to have equal shared parental responsibility for major long-term issues, with specific provisions for consultation and decision-making. Detailed arrangements were made for the children's time with the father, both before and after the relocation to Ireland, including provisions for international travel and cost-sharing for airfares. The orders also addressed communication between parents and children, the sharing of information regarding the children's health and education, and the nomination of secondary emergency contacts. The court also made specific orders regarding the children's counselling and the use of documents from the proceedings.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All parenting plans and previous parenting orders are discharged.

The children, X, born … 2011 and Y, born … 2014 live with the mother.

The mother is at liberty to relocate the children to live with her in Ireland at any time after giving the father no less than fourteen (14) days’ notice in writing of her intention to do so.

The parents have equal shared parental responsibility for the major long term issues of the children, including but not limited to:

(a) the children’s future education; and

(b) the children’s religious and cultural upbringing; and

(d) any changes to the living arrangements that make it significantly more difficult for the children to spend time with each party.

The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:

(a) each shall inform the other party about the decision proposed to be made; and

(b) each shall consult with the other with the view to reaching terms upon which they may agree; and

Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.

Until the children depart Australia for Ireland, they will spend time with the father at all reasonable times as may be agreed between the parties and failing agreement as follows:

(a) in week 1: from 5.30 pm Thursday to 7.00 Sunday; and

(b) in week 2: from 5.30 pm Thursday to 5.30 pm Friday; and

Upon the children living in Ireland and in the event the father resides in Ireland at a place reasonably proximate to where the children are living, the children shall spend time with him at all reasonable times as may be agreed between the parties and failing agreement as follows:

(a) in week 1: from 5.30 pm Thursday to 7.00 pm Sunday; and

(b) in week 2: from 5.30 pm Thursday to 5.30 pm Friday; and

(d) for the second half of the school holidays in even numbered years.

For the purpose of Orders (7) and (8) above, unless otherwise agreed between the parties, changeovers shall be effected at the mother’s residence.

10.

Upon the children living in Ireland and if the father resides in a country other than Ireland, the children shall spend time with him at all reasonable times as may be agreed between the parties and failing agreement as follows:

(a) for five (5) weeks during the Irish Summer school holidays each year, with the father or his nominee to travel to Ireland to collect the children at the start of this time and the mother or her nominee to travel to Brisbane to collect the children from the father at the conclusion of such time; and

(b) for all of the Irish end of year school holidays in each odd numbered year, with the father or his nominee to travel to Ireland to collect the children at the start of this time and the mother or her nominee to travel to Brisbane to collect the children from the father at the conclusion of such time; and

11.

In the event that the father informs the mother in writing, no less than 60 days prior to the start of the Irish summer school holidays, that he wishes the children to spend time with him in Australia for that holiday period, the parents shall each pay half of the cost of the children’s airfares for such time.

12.

In the event that the father informs the mother in writing, no less than 60 days prior to the start of the Irish end of year school holidays in each odd numbered year, that he wishes the children to spend time with him in Australia for that holiday period, the parents shall each pay half of the cost of the children’s airfares for such time.

13.

In addition to the time prescribed in Order (10) above, the children shall spend time with the father on any occasion he travels to Ireland and provided that he has first given the mother notice in writing, no less than thirty (30) days before his arrival in Ireland, of his intention to spend such time with the children in Ireland, as follows:

(a) if such time occurs during school term: for a period of no more than fourteen consecutive nights, provided that the father ensures that the children attend school during this time; and

(b) if such time occurs during a school holiday period other than the Irish Summer school holidays and the end of year school holidays: for all of that school holiday period; and

(c) if such time occurs during the Irish Summer school holidays: for half of that period, provided that the children have not already spent time with the father in Australia during that school holiday period; and

(d) if such time occurs during the end of year school holidays in even numbered years: for half of that school holiday period.

14.

For the purpose of any international travel undertaken by the children:

(a) each parent shall ensure that either they, or another adult known to the children, accompany the children on the flights until the children are both 10 years of age, after which time arrangements may be made with the international airline carrier for the children to travel as unaccompanied minors; and

(b) the parties agree to only travel to countries that are signatories to the Hague Convention; and

(c) the mother shall retain possession of the children’s passports at all times other than on those occasions when they are required for the children’s travel to Australia, at which time she shall provide the same to the father; and

(d) the father shall cause the children’s passports to be returned to the mother at the conclusion of their time with him.

15.

Each parent is at liberty to communicate with the children, when they are not in their care, by telephone, Skype, FaceTime or other similar facility (the communication) at all reasonable times and not less than each Wednesday and Sunday at such time as agreed by the parties in writing and on the children’s respective birthdays and on Christmas Day and, in order to facilitate this:

(a) the parent with whom the children are not spending time shall initiate the communication; and

(b) the parent in whose care the children are at that time shall make the children available to receive the communication; and

(c) the parent in whose care the children are at that time shall arrange for the children to contact the calling parent on the following night if, for any unforeseen circumstance, the children miss the communication from that parent; and

(d) each parent shall ensure that the children have privacy during the communication.

16.

The children are at liberty to communicate by telephone, Skype, FaceTime or other similar facility at all reasonable times with the parent with whom they are not spending time.

17.

During the time the children spend time with or communicate with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the children about the personal life of the other parent; and

(b) speak of the other parent respectfully; and

(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

18.

The mother is to promptly inform the father in writing of all the children’s major scholastic events and matters relating to the children’s health issues and shall ensure that she emails the father updates on the children, including by sending him photographs or video recordings of their general activities and relevant issues in the children’s lives.

19.

Each parent keep the other informed of the details of the children’s doctors, health care and other treatment providers and of the details of any school, educational facility or extra-curricular activity provider at which the children attend.

20.

By this Order any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the children as they are lawfully able to provide about the children.

21.

By this Order, any school, educational facility or extra-curricular activity provider at which the children attend is authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.

22.

If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity providers, that expense shall be borne by the parent requesting the information.

23.

Within fourteen (14) days of her receipt of the same, the mother shall provide the father with a copy of each of the children’s school reports.

24.

Each parent shall ensure that the other is nominated as a secondary emergency contact with any school at which or medical practitioner upon whom the children attend.

25.

Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children.

26.

Each parent shall keep the other parent informed at all times of their residential address, contact telephone number and an email address and shall:

(a) notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and

(b) notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they either currently reside, or will reside consequent on implementation of this Order.

27.

Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.

28.

The mother and father do all such things as may be required to ensure X receives ongoing counselling and assistance from her current treating counsellor, or such other counsellor as may be agreed by the parents, for so long as and as frequently as recommended by that counsellor. The parents shall comply with all reasonable directions of the counsellor, including but not limited to completion of courses.

29.

The mother and father are at liberty to provide a copy of the Family Reports of Ms C dated 14 May 2018 and 20 September 2019 to the children’s and/or parent’s treating counsellors and psychologists.

AND IT IS FURTHER ORDERED THAT

30.

Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

31.

The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

32.

All outstanding Applications are dismissed.

33.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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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