FEDERAL CIRCUIT COURT OF AUSTRALIA
RENWICK & RENWICK [2018] FCCA 154
Catchwords:
FAMILY LAW – Application for final parenting orders – child 9 years old – mother primary carer – issues relating to family violence during the relationship – mother wishing to relocate to (omitted) – majority of extended family members living in (omitted) – child has close relationship with father – child has close relationship with half sibling and most extended family members who live in (omitted) – whether father can relocate to (omitted) – whether mother’s new partner can relocate to (omitted) – child expressing strong views against relocating to (omitted) – consideration of section 60CC factors – advantages and disadvantages of relocation – final orders made for child to relocate to (omitted) at the commencement of the school year in January 2019.
Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DA, 65DAC
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:
A v A: Relocation Approach (2000) 26 Fam LR 382
Adamson & Adamson [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160
Bolitho v Cohen (2005) 33 Fam LR 471
Boyle & Zahur and Anor (No 2) [2017] FamCAFC 263
Cox & Pedrana (2013) 48 Fam LR 651
East & Loewe [2015] FamCA 517
Hamish & Brighton [2014] FamCAFC 242
Jatasra & Khosla [2016] FamCA 865
Kaule & Brown [2015] FamCA 480
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Mordon & Paul [2014] FamCAFC 222
Morrall & Olmos [2017] FamCAFC 2
MRR & GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC 93-513
Oswald & Karrington [2016] FamCAFC 152
Sayer & Radcliffe and Anor (2012) 48 Fam LR 298
Soulos & Sorbo [2015] FamCA 196
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90
Applicant: MS RENWICK
Respondent: MR RENWICK
File Number: CAC 1973 of 2015
Judgment of: Judge Tonkin
Hearing dates: 3 & 4 October 2017
Date of Last Submission: 4 October 2017
Delivered at: Canberra
Delivered on: 24 January 2018 REPRESENTATION
Counsel for the Applicant: Ms Davis
Solicitors for the Applicant: Robinson McGuiness
Counsel for the Respondent: Mr Millar
Solicitors for the Respondent: Farrar Gesini Dunn ORDERS
(1)The parents have equal shared parental responsibility for the child, X born (omitted) 2008 (“X”).
(2)Until the commencement of the school year in January/February 2019:
(a)X shall live with her mother in (omitted).
(b)X shall spend time with her father during school terms:
(i)Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) the following Tuesday; and
(ii)Each Thursday from after school (or 3.00 pm) until 7.00 pm.
(c)Changeover shall occur at school and on Thursday the father will deliver X to her mother at the conclusion of time.
(d)Unless otherwise agreed between the parties, X shall spend time with the parties during school holiday periods as follows:
(i)With…
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- Renwick and Renwick [2018] FCCA 154
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- [2018] FCCA 154
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CaseChat Overview and Summary
The court was required to determine the specific arrangements for X's living situation and time with each parent, both before and after a specified school year commencement. Key issues included establishing a primary residence, defining the frequency and duration of time X would spend with the non-resident parent, and outlining the division of school holiday periods. The court also had to consider provisions for special occasions, parental relocation, and communication protocols between the parents.
Judge Tonkin made orders establishing equal shared parental responsibility for X. The orders detailed a specific schedule for X to live with her mother and spend time with her father during school terms and holidays, with provisions for changeovers and the calculation of holiday periods. The court also included specific provisions for X's birthday, her parents' birthdays, and Christmas, as well as restrictions on relocation and communication about the proceedings. Notably, the court ordered the parents to engage a counsellor to assist X with her relocation and stipulated that these parenting orders would prevail over any inconsistent Apprehended Domestic Violence Order.
Orders
Orders of the court
(1) The parents have equal shared parental responsibility for the child, X born (omitted) 2008 (“X”).
(2) Until the commencement of the school year in January/February 2019:
(a) X shall live with her mother in (omitted).
(b) X shall spend time with her father during school terms:
(i) Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) the following Tuesday; and
(ii) Each Thursday from after school (or 3.00 pm) until 7.00 pm.
(c) Changeover shall occur at school and on Thursday the father will deliver X to her mother at the conclusion of time.
(d) Unless otherwise agreed between the parties, X shall spend time with the parties during school holiday periods as follows:
(i) With her mother for the first half of all school holiday periods commencing in years ending in an even number, and the second half of all school holiday periods commencing in years ending in an odd number; and
(ii) With her father for the second half of all school holiday periods commencing in years ending in an even number, and the first half of all school holiday periods commencing in years ending in an odd number.
(3) That for the purposes of the preceding Order, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a) The first half of the school holiday period is deemed to commence at the end of classes on the last day of school;
(b) The second half of the school holiday period is deemed to conclude at the beginning of classes on the first day of school;
(c) One half of the school holiday period is to be calculated by dividing the total number of days X does not attend school by 2, and changeover will occur at 5.00pm on that day. If the number of days are not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
(d) In the event that changeover cannot occur at school the party with whom the child is to spend time shall collect the child from the home of the other parent at the commencement of time and return the child to the other parent at the conclusion of time.
(4) Notwithstanding these Orders:
(a) X shall live with her mother from 9.00am until 5.00pm each Mother’s Day and with her father from 9.00am until 5.00pm each Father’s Day;
(b) If the mother’s birthday or the father’s birthday fall on a day when X would otherwise be living with the other parent, the following Orders apply:
(i) That if the mother’s or father’s birthday falls on a weekday, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing agreement, from 4.00pm until 7.00pm; and
(ii) That if the mother’s or father’s birthday falls on a weekend, each of the parents take all reasonable steps to ensure that X spends time with the parent having the birthday from 9.00am until 5.00pm on the birthday.
(c) On X’s birthday each year the parent with whom X is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement, from 5.00pm until 7.00pm
(d) X shall spend time:
(i) With her mother from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2018 and each alternate year thereafter;
(ii) With her father from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2018 and each alternate year thereafter;
(iii) With her father from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2019 and each alternate year thereafter;
(iv) With her mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2019 and each alternate year thereafter;
(5) Until the commencement of the January/February 2019 school year:
(a) Neither party shall change X’s place of residence from the (omitted) area without first obtaining the written consent of the other party; and
(b) Neither party shall change X’s school without the consent of the other party.
(6) From the commencement of the school year in January/February 2019:
(a) X shall live with her mother in (omitted).
(b) In the event that the father relocates to (omitted), X shall spend time with her father during school terms:
(i) Each alternate weekend from after school (or 3.00pm) on Friday until before school (or 9.00am) the following Tuesday; and
(ii) Each Thursday from after school (or 3.00 pm) until 7.00 pm.
(c) In the event that the father continues to live in (omitted), X shall spend time with her father during school terms on the third Friday of each month from approximately 9.00 pm on Friday until 3.00 pm Sunday with the mother to deliver X to the father’s home at the commencement of time and the mother to collect X from the father’s home at the conclusion of time.
(d) Unless otherwise agreed between the parties, X shall spend time with the parties during school holiday periods as follows:
(i) With her mother for the first half of all school holiday periods commencing in years ending in an even number, and the second half of all school holiday periods commencing in years ending in an odd number; and
(ii) With her father for the second half of all school holiday periods commencing in years ending in an even number, and the first half of all school holiday periods commencing in years ending in an odd number.
(iii) Changeover shall occur at (omitted) with the parties meeting half way at a time to be agreed.
(7) That for the purposes of the preceding Order, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a) The first half of the school holiday period is deemed to commence at the end of classes on the last day of school;
(b) The second half of the school holiday period is deemed to conclude at the beginning of classes on the first day of school;
(c) One half of the school holiday period is to be calculated by dividing the total number of days X does not attend school by 2, and changeover will occur at 5.00pm on that day. If the number of days are not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
(8) Notwithstanding these Orders:
(a) Unless otherwise agreed X shall live with her father from 9.00 pm Friday until 3.00 pm Sunday on the Father’s Day weekend with the mother to deliver the child to the father’s home at the commencement of time and the mother to collect the child from the father’s home at the conclusion of time;
(b) The parent with whom the child is living on one of her parent’s birthdays shall ensure the child communicates with the other parent on his or her birthday.
(c) The parent with whom the child is not living on X’s birthday is at liberty to spend time with X on her birthday for a period of 3 hours in so far as spending time with X is reasonably practicable. In the event that spending time on X’s birthday is not reasonably practicable, that parent shall be at liberty to communicate with X on her birthday.
(d) From December 2019 in the event that the father does not live in (omitted) the father will ensure that X communicates with her mother on Christmas Day between 3.00 pm and 4.00 pm otherwise X will live with her father during the first half of the 2019 school holiday period and each alternate year thereafter including over the Christmas period.
(e) From December 2018 in the event that the father does not live in (omitted), the mother will ensure that X communicates with her father on Christmas Day between 3.00 pm and 4.00 pm otherwise X will live with her mother during the first half of the 2018 school holiday period and each alternate year thereafter including over the Christmas period.
(9) The parents be permitted to communicate via text message and email in relation to the care arrangements for, and welfare of, X.
(10) The parties shall forthwith engage a counsellor (and/or therapist) to assist X to prepare for her relocation to (omitted). Both parties shall co-operate with any reasonable requirements for X that the counsellor may suggest will prepare X for the relocation and the parties may participate in counselling sessions should the counsellor determine that such participation is beneficial to X.
(11) Each parent shall notify the other forthwith of any serious illness or injury affecting X, and be at liberty to contact any doctor or hospital treating her to obtain information.
(12) Each parent shall notify the other of the name of any general practitioner or paediatrician or other specialist who treats X whilst X is in that parent’s care.
(13) Neither parent shall say unkind or uncomplimentary things about the other to or in the presence or X, nor allow anybody else to do so.
(14) Both parents be and are hereby restrained from discussing these proceedings with or in the presence of X.
(15) To the extent that these parenting orders are inconsistent with the Apprehended Domestic Violence Order made by the Local Court of New South Wales on 22 February 2017, these orders prevail.
Background
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Evidence
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Decision
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Ratio Decidendi
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