REEVES & GRINTER - [2015] FamCA 1037

FAMILY COURT OF AUSTRALIA

REEVES & GRINTER

[2015] FamCA 1037

FAMILY LAW – CHILDREN – where subject child has significant intellectual and mental health issues – where the child has primarily lived with the mother since birth – where the mother has since separation in 2010 been the child’s primary carer – where the father has had little engagement with the child and the child’s educational and health issues until recently – where there are competing applications for residence – where the child has had significant engagement in educational services and health services in the care of the mother – where the child’s health circumstances have significantly improved in the twelve months prior to hearing – where the child has established social capital in his living circumstances with the mother – where the mother and father have agreed to jointly engage with an agreed paediatric expert in relation to the child’ future diagnosis in the future – where the father’s proposals are untested – where the single expert evidence ultimately was cautious and ambivalent in relation to a recommendation that the child live primarily with the father – where for reasons given the single expert’s recommendation not followed – where orders made for the child to continue to live primarily with the mother and spend time with the father.

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

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Mr Reeves

RESPONDENT:

Ms Grinter

INDEPENDENT CHILDREN’S LAWYER:

Osborne Legal

FILE NUMBER:

SYC

6726

2013

DATE DELIVERED:

25 November 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17, 18, 19 and 20 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Boyle

SOLICITOR FOR THE APPLICANT:

KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW C Town

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Siggins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Osborne Legal

Orders

That all previous parenting orders in relation to the child B born on … 2006 (“the child”) be discharged.
That the mother and father have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as agreed between the father and mother in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) during school term on the second, fifth and eighth weekend of school term from after-school Friday to Sunday evening with fifth weekend to occur with the father in Sydney and the second and eighth weekends to occur with the father in the C Town area and for the purposes of this order the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport…

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 REEVES & GRINTER

Details

AGLC: REEVES & GRINTER [2015] FamCA 1037
Case: [2015] FamCA 1037
Decision Date: 25 November 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Foster J in relation to a child born in 2006. The proceedings involved the mother and father of the child, who sought to discharge previous parenting orders and establish new arrangements for their child.

The court was required to determine the appropriate parenting orders, including the allocation of parental responsibility, the child's living arrangements, and the schedule for the child to spend time with each parent. Additionally, the court needed to address communication protocols between the parents and the child, provisions for the child's health and education, and the exchange of personal contact details.

Foster J ordered the discharge of all previous parenting orders and established equal shared parental responsibility. The child was to live with the mother, and spend time with the father according to a detailed schedule involving weekends, school holidays, and Christmas periods, with specific provisions for travel arrangements, including unaccompanied minor flights between Sydney and C Town, with the father bearing all associated costs. The orders also mandated regular communication between the child and the non-resident parent, and stipulated that each parent must respect the other's privacy and speak of the other parent respectfully in the child's presence. Further orders addressed the notification of medical issues, attendance at appointments, adherence to medical advice, communication with the child's school, attendance at significant events, and the exchange of contact details. Finally, the court ordered that the parents facilitate a medical referral for the child to a paediatric specialist, Dr D, and follow all reasonable directions given by Dr D or other referred health professionals.

Orders

Orders of the court

That all previous parenting orders in relation to the child B born on … 2006 (“the child”) be discharged.

That the mother and father have equal shared parental responsibility for the child.

That the child live with the mother.

That the child spend time with the father as agreed between the father and mother in writing with such writing to include SMS or email communication and in default of agreement as follows:

(a) during school term on the second, fifth and eighth weekend of school term from after-school Friday to Sunday evening with fifth weekend to occur with the father in Sydney and the second and eighth weekends to occur with the father in the C Town area and for the purposes of this order the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

(b) for 10 consecutive days during the school holidays at the end of Terms 1, 2 and 3 of New South Wales school holiday periods as agreed and failing such agreement for the first 10 days thereof commencing from after school on the last day of school term and concluding early evening on the ninth day thereafter and for the purposes of this order if the father does not collect and return the child then the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

(c) for one half of the Christmas school holiday periods being the first half of such holiday period in odd numbered years commencing on the afternoon of the day following the conclusion of school term and the second half of such holiday period in even numbered years concluding on the evening of the Friday prior to the resumption of school term and for the purposes of this order if the father does not collect and return the child then the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

That the child shall have regular communication with the mother and the father when he is not in their respective care using mobile phone, Skype or FaceTime (or similar audio-visual tool) each Sunday and Thursday evening at approximately 6.30 pm with the non-carer parent to dial in and the other parent to ensure that they have available the necessary technology to use such Skype or FaceTime communication and to ensure that the child is ready to accept the call and to afford the child reasonable privacy during the duration of the call.

That during the time that the child is in the care of each parent that parent shall respect the privacy of the other parent and not question the child about the personal life of the other parent, speak of the other parent and the family respectfully and not denigrate or insult the other parent in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

That the mother and father shall advise each other promptly of any serious medical issue concerning the child that requires the child to be hospitalised or receive urgent medical attention and provide all necessary authorities to treating medical professionals or institutions to enable the other to speak with and be consulted about the child’s health.

That the mother shall in a timely fashion inform the father of all specialist medical and therapeutic appointments scheduled for the child and both the mother and father are at liberty, subject to the discretion of the treating practitioner, to attend all such appointments.

That the mother and father shall follow all directions given by medical or therapeutic practitioners in relation to current treatment regime and prescribed medications during periods that the child is in their respective care.

10.

That the mother shall give to the child’s school written and irrevocable authority to enable the school to communicate with the father and the father to communicate with the school as to the child’s progress at school and for the father to be provided with copies of school reports and school newsletters.

11.

That the mother and father shall be at liberty to attend on occasions significant to the welfare of the child including but not limited to occasions relating to the child’s education, health and medical treatment, religion, sport, extra-curricular activities and other occasions where the attendance of either or both parents is to be reasonably expected.

12.

That the mother and father shall within 24 hours advise the other of their current residential and postal addresses, landline telephone numbers and mobile telephone numbers and email address and shall thereafter advise the other of any changes to such a details within 48 hours of such change occurring.

13.

That the mother and father shall do all things necessary and sign all necessary documents so as to procure a medical referral for the child to Dr D paediatric specialist and facilitate the child attending upon Dr D for consultation and treatment and the mother and father shall follow all reasonable directions of Dr D or any other doctor or allied health professional that Dr D may refer the child to for treatment or assistance and in particular shall follow directions about provision of medication or reduction of medication for the child.

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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