Reynolds and Webster - [2016] FCCA 1208

FEDERAL CIRCUIT COURT OF AUSTRALIA

REYNOLDS & WEBSTER

[2016] FCCA 1208

Catchwords:
FAMILY LAW – Relocation to Western Australia – Views expressed by children – Potential separation of siblings – Relocation not permitted – Live with and spend time arrangements – Best interests.

Legislation:

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

Cases cited:
Sayer & Radcliffe and Anor [2012] FamCAFC 209

Taylor & Barker [2007] FamCA 1246
Duggan & Duggan [2009] FamCAFC 115
Heaton & Heaton [2012] FamCAFC 139

Morgan & Miles (2007) FLC 93-343
Bennett & Bennett (1991) FLC 92-191
Heath & Hemming (No.2) [2011] FamCA 749

Applicant:

MS REYNOLDS

Respondent:

MR WEBSTER

File Number:

HBC 130 of 2015

Judgment of:

Judge Baker

Hearing dates:

19 and 22 April 2016

Date of Last Submission:

22 April 2016

Delivered at:

Hobart

Delivered on:

27 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Trezise

Solicitors for the Applicant:

Dobson Mitchell & Allport

Counsel for the Respondent:

Ms Jones

Solicitors for the Respondent:

Butler, McIntyre & Butler

ORDERS

Ms Reynolds (“the mother”) and Mr Webster (“the father”) have equal shared parental responsibility for the children, X born (omitted) 2001 (“X”), Y born (omitted) 2004 (“Y”) and Z born (omitted) 2009 (“Z”) (collectively, “the children”).
Each party will keep the other informed concerning the children’s health generally, and contact each other as soon as practicable if any of the children suffers a significant adverse medical condition or injury.
In relation to the aspect of parental responsibility concerning the children’s extra-curricular activities:
(a)Neither parent will enrol a child in an extra-curricular activity which impinges upon the other’s time without the prior agreement of the other parent;
(b)Each parent will facilitate the attendance of the children at agreed extra- curricular activities.
For the purposes of parenting the children, the mother and father will inform each other within 3 days of any change of that parents’ contact address or contact telephone number.
Each party be and is hereby restrained from consuming alcohol to excess twelve hours before or during time with the children or any of them, and “to excess” is defined as exceeding a concentration of 0.05 of a gram of alcohol in 210 litres of breath or a concentration of 0.05 of a gram of alcohol in 100 millilitres of blood.
Each party be and is hereby restrained from denigrating, threatening, harassing or verbally abusing the other in the presence of the children.
The children live with the mother in Tasmania.
Commencing Friday 3 June 2016, the children spend time with the father:
(a)During the school terms, each alternate weekend from the conclusion of school on Friday (or 4:00 pm if not a school day) until the commencement of school on Tuesday (or 10:00 am if not a school day); and
(b)In the mid-term school holiday periods, for one half of the school holiday period, being the first half of the school holidays in 2016 and each alternate year thereafter, and the second half of the school holidays in 2017 and…

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 Reynolds and Webster

Details

AGLC: Reynolds and Webster [2016] FCCA 1208
Case: [2016] FCCA 1208
Decision Date: 27 May 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Reynolds and Mr Webster regarding the parenting arrangements for their three children. The court was required to make orders concerning the children's living arrangements, time spent with each parent, and aspects of parental responsibility.

The court was tasked with determining the extent of equal shared parental responsibility, the specific time arrangements for the children with each parent, and various ancillary orders relating to communication, health, extra-curricular activities, and the conduct of the parents. Key issues included the division of time during school terms and holidays, as well as special occasions like Christmas and Easter, and the specific restrictions to be placed on each parent's behaviour in relation to the children and each other.

The court ordered that Ms Reynolds and Mr Webster have equal shared parental responsibility for the children. The children were ordered to live with Ms Reynolds, with Mr Webster to spend time with them on alternate weekends during school terms, and for half of the mid-term and alternate weeks during summer school holidays. Specific arrangements were also made for Christmas, Easter, birthdays, and Mother's and Father's Day weekends. The court also made orders restraining both parents from consuming alcohol to excess within twelve hours before or during time with the children, from denigrating the other parent in the children's presence, and from physically disciplining the children. Furthermore, Ms Reynolds was restrained from bringing the children into contact with a Mr D. Provisions were also made for communication between parents and children, and for the facilitation of extra-curricular activities.

Orders

Orders of the court

Ms Reynolds (“the mother”) and Mr Webster (“the father”) have equal shared parental responsibility for the children, X born (omitted) 2001 (“X”), Y born (omitted) 2004 (“Y”) and Z born (omitted) 2009 (“Z”) (collectively, “the children”).

Each party will keep the other informed concerning the children’s health generally, and contact each other as soon as practicable if any of the children suffers a significant adverse medical condition or injury.

In relation to the aspect of parental responsibility concerning the children’s extra-curricular activities:

(a) Neither parent will enrol a child in an extra-curricular activity which impinges upon the other’s time without the prior agreement of the other parent;

(b) Each parent will facilitate the attendance of the children at agreed extra- curricular activities.

For the purposes of parenting the children, the mother and father will inform each other within 3 days of any change of that parents’ contact address or contact telephone number.

Each party be and is hereby restrained from consuming alcohol to excess twelve hours before or during time with the children or any of them, and “to excess” is defined as exceeding a concentration of 0.05 of a gram of alcohol in 210 litres of breath or a concentration of 0.05 of a gram of alcohol in 100 millilitres of blood.

Each party be and is hereby restrained from denigrating, threatening, harassing or verbally abusing the other in the presence of the children.

The children live with the mother in Tasmania.

Commencing Friday 3 June 2016, the children spend time with the father:

(a) During the school terms, each alternate weekend from the conclusion of school on Friday (or 4:00 pm if not a school day) until the commencement of school on Tuesday (or 10:00 am if not a school day); and

(b) In the mid-term school holiday periods, for one half of the school holiday period, being the first half of the school holidays in 2016 and each alternate year thereafter, and the second half of the school holidays in 2017 and each alternate year thereafter; and

(c) In the summer school holidays, each alternate week commencing on the first Friday of the school holiday period in 2016 and each alternate year thereafter, and commencing on the second Friday of the school holiday period in 2017 and each alternate year thereafter, with changeover to occur each Friday at 5:30 pm.

Notwithstanding paragraph 8, at Christmas the children will spend time:

(a) Unless otherwise agreed, in 2016 and each alternate year thereafter, with the mother from 11:30 am Christmas Eve until 11:30 Christmas Day, and with the father from 11:30 am Christmas Day until 11:30 am Boxing Day;

(b) Unless otherwise agreed, in 2017 and each alternate year thereafter, with the father from 11:30 am Christmas Eve until 11:30 am Christmas Day, and with the mother from 11:30 am Christmas Day until 11:30 am Boxing Day.

10.

Notwithstanding paragraph 8 above, at Easter the children will spend time:

(a) In 2016 and each alternate year thereafter, with the mother from 4:00 pm Easter Saturday until 4:00 pm Easter Sunday, and with the father from 4:00 pm Easter Sunday until 4:00 pm Easter Monday;

(b) In 2017 and each alternate year thereafter, with the father from 4:00 pm Easter Saturday until 4:00 pm Easter Sunday and with the mother from 4:00 pm Easter Sunday until 4:00 pm Easter Monday.

11.

Children’s birthdays:

(a) If on a school day, then the parent who does not have care of the child on that day will have time from the conclusion of school until 7:00 pm with the children;

(b) If on a non-school day, then the parent who does not have the care of the child will have time from 2:00 pm until 7:00 pm with the children.

12.

Father’s birthday: if not otherwise in the care of the father, from the conclusion of school or 3:00 pm on the day of the birthday until the commencement of school, or 10:00 am if a non-school day, on the next day.

13.

Mother’s birthday: if not otherwise in the care of the mother, from the conclusion of school or 3:00 pm on the day of the birthday until the commencement of school, or 10:00 am if a non-school day, on the next day.

14.

If the children are not otherwise in the care of the mother, they will spend time with the mother on Mother’s Day weekend from 5:00 pm on the Saturday before Mother’s Day until the commencement of school on Monday (or 10:00 am if it is not a school day).

15.

If the children are not otherwise in the care of the father, they will spend time with the father on Father’s Day weekend from 5:00 pm on the Saturday before Father’s Day until the commencement of school on Monday (or 10:00 am if it is not a school day).

16.

The parents spend time with the children at such further or other times as agreed.

17.

Each parent have all reasonable telephone and other communication with the children and each parent will facilitate the children calling the other parent at any reasonable time.

18.

The mother be and is hereby restrained from bringing any of the children into contact with Mr D.

19.

Each party be and is hereby restrained from physically disciplining the children.

20.

Changeover will occur as follows:

(a) On school days, at the children’s schools with the children to catch the bus to the home of the parent with whom they are spending time; and

(b) On non-school days at the (omitted) shop unless otherwise agreed between the parties.

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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