Reis and Nash - [2014] FCCA 2782

FEDERAL CIRCUIT COURT OF AUSTRALIA

REIS & NASH

[2014] FCCA 2782

Catchwords:
FAMILY LAW – Parenting orders – variation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60NB, 61DA, 65DAA, 70NBA

MRR v GR [2010] HCA 4
Nash & Reis [2013] FMCAfam 11

Applicant:

MS REIS

Respondent:

MS NASH

File Number:

CAC 236 of 2012

Judgment of:

Judge Altobelli

Hearing date:

13 November 2014

Date of Last Submission:

13 November 2014

Delivered at:

Wollongong

Delivered on:

15 December 2014

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That in these orders “contact” means spending time with.
That all previous Orders be discharged in relation to the Child X, born (omitted) 2006 (hereafter referred to as “the Child”).
That the parties have equal shared parental responsibility in relation to the Child.
That the Child live with MS REIS (hereafter referred to as “Ms Reis”).
That the Child have contact with MS NASH (hereafter referred to as “Ms Nash”) as follows:
(a)On the third and seventh weekend of each school term which, subject to Orders 9 and 11, is to run from Friday to Sunday;
(b)During the mid year school holidays as follows:
(i)In even years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Monday of the school holiday period; and
(ii)In odd years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Tuesday of the school holiday period;
(c)For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years;
(d)If Easter falls prior to the first term school holidays, Ms Nash’s contact on a weekend may be adjusted if this is necessary, in which case contact would run from Maundy Thursday to Easter Monday;
(e)If it is necessary, Ms Nash’s contact in the first term holidays may be adjusted from the first ten days as provided in Order 5(b) so as to give effect to the Court’s intentions.
In addition to Order 5 above, the Child is to spend time with the party she is not already living with on her birthday as follows:
(a)If the Child’s birthday falls on a school day, the Child is to spend time with the party she is not already living with from after school until 8:00pm; and
(b)If the Child’s birthday falls on a weekend or school holiday, the Child is to spend time with the party she is not already living with from 3:00pm until 8:00pm.
That for the purpose of Order 6 above:
(a)Any such time must take place in the region that the Child is living on the day of her birthday; and
(b)Changeover is to take place at the McDonald’s family restaurant nearest to the home where the Child is living on the day of her birthday, unless the parties otherwise agree to another neutral location.
That each party…

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 Reis and Nash

Details

AGLC: Reis and Nash [2014] FCCA 2782
Case: [2014] FCCA 2782
Decision Date: 15 December 2014

CaseChat Overview and Summary

This matter concerned orders made by Judge Altobelli in relation to the parenting of a child, Child X. The proceedings involved an application by Ms Nash and a contravention application filed by Ms Nash, which was dismissed. The court discharged all previous orders concerning the Child and made new orders regarding equal shared parental responsibility, the child's living arrangements, and contact arrangements for Ms Nash.

The court was required to determine the specific terms of contact between the child and Ms Nash, including weekend contact, holiday periods, and arrangements for the child's birthday. Further issues included communication protocols between the parties, notification of health professionals and schools, and the process for varying future orders. The court also addressed the definition of "significant event" for the purpose of varying contact arrangements and clarified the calculation of holiday periods.

In making its orders, the court established a detailed schedule for Ms Nash's contact with the child, specifying dates and times for various periods throughout the year, including school terms, mid-year holidays, Christmas holidays, and Easter. Provisions were made for the child's birthday, communication between parties, and the exchange of information regarding the child's health and education. The court also mandated that parties engage in Family Dispute Resolution before applying to vary the orders. The contravention application was dismissed.

Orders

Orders of the court

That in these orders “contact” means spending time with.

That all previous Orders be discharged in relation to the Child X, born (omitted) 2006 (hereafter referred to as “the Child”).

That the parties have equal shared parental responsibility in relation to the Child.

That the Child live with MS REIS (hereafter referred to as “Ms Reis”).

That the Child have contact with MS NASH (hereafter referred to as “Ms Nash”) as follows:

(a) On the third and seventh weekend of each school term which, subject to Orders 9 and 11, is to run from Friday to Sunday;

(b) During the mid year school holidays as follows:

(i) In even years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Monday of the school holiday period; and

(ii) In odd years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Tuesday of the school holiday period;

(c) For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years;

(d) If Easter falls prior to the first term school holidays, Ms Nash’s contact on a weekend may be adjusted if this is necessary, in which case contact would run from Maundy Thursday to Easter Monday;

(e) If it is necessary, Ms Nash’s contact in the first term holidays may be adjusted from the first ten days as provided in Order 5(b) so as to give effect to the Court’s intentions.

In addition to Order 5 above, the Child is to spend time with the party she is not already living with on her birthday as follows:

(a) If the Child’s birthday falls on a school day, the Child is to spend time with the party she is not already living with from after school until 8:00pm; and

(b) If the Child’s birthday falls on a weekend or school holiday, the Child is to spend time with the party she is not already living with from 3:00pm until 8:00pm.

That for the purpose of Order 6 above:

(a) Any such time must take place in the region that the Child is living on the day of her birthday; and

(b) Changeover is to take place at the McDonald’s family restaurant nearest to the home where the Child is living on the day of her birthday, unless the parties otherwise agree to another neutral location.

That each party may communicate with the Child on up to two occasions a week when the Child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.

That one of the contact weekends is to be on the Queen’s Birthday long weekend and contact will end on the Monday.

10.

That notwithstanding Order 5(a), in 2014 and each alternate year thereafter the weekend of Mother’s Day is to be one of the contact weekends.

11.

That until the Child commences secondary school, Ms Nash may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days’ notice.

12.

That in 2015 and each alternate year thereafter, Ms Nash may vary the second contact weekend in Term 4 so that it is the weekend before the commencement of the Christmas holidays.

13.

That either party may vary the contact weekend if there is a significant event involving the Child that would indicate that a variation is appropriate. Unless it is impractical, at least 14 days notice is to be given.

14.

That for the purpose of these Orders and unless otherwise specified:

(a) The words “significant event” in Order 12 is defined to include an event involving the Child, her parents or grandparents that the Child expresses a strong wish to attend.

(b) One half of the Christmas school holidays will be computed by dividing the number of days the Child does not attend school by two. If this is an uneven number of days Ms Nash is to have the additional day.

(c) When contact is in the first part of the Christmas holidays it is to commence on the first day after school breaks up. When it is in the second part of the holidays it is to conclude two clear days before school resumes.

(d) Weekend contact shall commence at 5:30pm and conclude at 4:00pm. Holiday contact is to commence at 11:00am and conclude at 4:00pm.

(e) All changeovers shall occur at side of (omitted), (omitted) near the corner of the (omitted), opposite the (omitted) Shopping Centre petrol station.

15.

That Ms Reis is to notify Ms Nash of the name of any health professional involved with the Child and to authorise such person to provide any information to the applicant as she may request.

16.

That each party is to keep the other advised of any significant medical issues that arise when the Child is in her care.

17.

That Ms Reis is to authorise any school the Child attends to provide to Ms Nash copies of reports, school photographs and any other information requested by her and she is to keep Ms Nash informed of any events at the school which it could be anticipated that Ms Nash might wish to attend.

18.

That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Child or of the parties, each of the parties shall each do all things necessary to facilitate and attend Family Dispute Resolution with an Organisation recognised under the Family Law Act 1975.

19.

The Contravention Application filed 26 May 2014 be dismissed.

THE COURT NOTES THAT:

A. The parties intend to review these Orders in the Child’s first year of attending High School.

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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