RHOADES & KEARNEY - [2015] FCCA 1716

FEDERAL CIRCUIT COURT OF AUSTRALIA

RHOADES & KEARNEY

[2015] FCCA 1716

Catchwords:
FAMILY LAW – Contested interim application between stepfather and father for primary residence of child – mother hit by a car in January 2015 and tragically killed – mother and step father had relocated the child to (omitted) from Victoria pursuant to Orders of this Court in October 2014 – Father has equal shared parental responsibility with the mother in existing Orders and for child to live with him for regular periods throughout the year – stepfather seeks orders that child live with him in (omitted) and contends that health issues mean cannot return to Victoria.

FAMILY LAW – Consideration of child’s best interests – child to live with father in Victoria.

Aldridge & Keaton [2009] FamCAFC 229

Applicant:

MR RHOADES

Respondent:

MR KEARNEY

File Number:

CSC 45 of 2015

Judgment of:

Judge Willis

Hearing date:

20 February 2015

Date of Last Submission:

20 February 2015

Delivered at:

Cairns

Delivered on:

22 June 2015

REPRESENTATION

Solicitors for the Applicant:

NQ Family Law Centre

Solicitors for the Respondent:

Self-represented

Independent Children’s Lawyer:

Ms Gray

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

The Child X born (omitted) 2005 (“the Child”) live with the Father.
The Father and Stepfather (Mr Rhoades) have equal shared parental responsibility, save and except that the Father will have sole parental responsibility for issues and decisions regarding the Child’s religion.
The Child spend time with the Stepfather at all times as agreed between the parties, and failing agreement, as follows:
(a)On one weekend each month to occur on an alternating basis between either (omitted) or Melbourne each month, with the Stepfather to travel to Melbourne in one month and the Child to travel to (omitted) in the other month. Any weekends are to include student-free days.
(b)In the event that any month has a long weekend, the weekend that X spends with the Stepfather should occur on that weekend. In the event that the week-end occurs in a month when there is a gazetted school holiday period, the weekend shall not occur, but rather, will be replaced by spending time pursuant to this order during the school holiday.
(c)On weekends that the Child is travelling to (omitted), the weekend will commence at 12:00 noon on a Friday and conclude at 12:00 noon on the following Monday. Otherwise, when the Stepfather’s weekend occurs in Victoria, his time will commence from after school Friday and conclude prior to school on the following Monday.
(d)One half of the Victorian school holidays, commencing on the Saturday after the conclusion of school and concluding at 5:00pm at the midway point.
(e)Any other reasonable time that the stepfather is travelling to Victoria, on the condition that:
(i)10 days notice is given to the father;
(ii)the Child is taken to school and to his extracurricular activities;
(iii)the period is no longer than one week; and
(iv)that it occur no more than four weeks a year and not in conjunction with any other time.

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 RHOADES & KEARNEY

Details

AGLC: RHOADES & KEARNEY [2015] FCCA 1716
Case: [2015] FCCA 1716
Decision Date: 22 June 2015

CaseChat Overview and Summary

This matter concerned a contested interim application heard by Judge Willis in the Family Court of Australia. The application was brought by Mr Rhoades, the stepfather, seeking orders for the primary residence of Child X. The dispute arose following the tragic death of Child X's mother, who had previously relocated the child from Victoria to (omitted) with Mr Rhoades. The child's father sought orders for Child X to live with him in Victoria.

The court was required to determine the best interests of Child X in circumstances where the mother, who had shared parental responsibility with the father, was deceased. Specifically, the court had to consider the competing claims for primary residence between the stepfather, who wished for Child X to remain in (omitted) due to alleged health issues, and the father, who sought the child's return to Victoria. The court also had to consider the existing orders for equal shared parental responsibility and the father's entitlement to regular periods of residence with the child.

Judge Willis ordered that Child X live with the Father. The court determined that equal shared parental responsibility would be maintained between the Father and the Stepfather, with the exception that the Father would have sole responsibility for decisions regarding the child's religion. The court also made detailed orders regarding the time Child X would spend with the Stepfather, including alternating weekends, long weekends, school holidays, and additional time subject to specific conditions. The Father was also ordered to facilitate time between Child X and his maternal family. By consent, orders were made regarding the child's diet and communication with the Stepfather, and both parties were directed to attend family dispute resolution.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER:

The Child X born (omitted) 2005 (“the Child”) live with the Father.

The Father and Stepfather (Mr Rhoades) have equal shared parental responsibility, save and except that the Father will have sole parental responsibility for issues and decisions regarding the Child’s religion.

The Child spend time with the Stepfather at all times as agreed between the parties, and failing agreement, as follows:

(a) On one weekend each month to occur on an alternating basis between either (omitted) or Melbourne each month, with the Stepfather to travel to Melbourne in one month and the Child to travel to (omitted) in the other month. Any weekends are to include student-free days.

(b) In the event that any month has a long weekend, the weekend that X spends with the Stepfather should occur on that weekend. In the event that the week-end occurs in a month when there is a gazetted school holiday period, the weekend shall not occur, but rather, will be replaced by spending time pursuant to this order during the school holiday.

(c) On weekends that the Child is travelling to (omitted), the weekend will commence at 12:00 noon on a Friday and conclude at 12:00 noon on the following Monday. Otherwise, when the Stepfather’s weekend occurs in Victoria, his time will commence from after school Friday and conclude prior to school on the following Monday.

(d) One half of the Victorian school holidays, commencing on the Saturday after the conclusion of school and concluding at 5:00pm at the midway point.

(e) Any other reasonable time that the stepfather is travelling to Victoria, on the condition that:

(i) 10 days notice is given to the father;

(ii) the Child is taken to school and to his extracurricular activities;

(iii) the period is no longer than one week; and

(iv) that it occur no more than four weeks a year and not in conjunction with any other time.

The Father is to do all acts and things to initiate and facilitate regular time between the Child and his maternal family and cooperate with their reasonable requests for time to be spent with the Child.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:

Neither of the parties feed the child food with artificial additives.

That the Child communicate by Skype, FaceTime or phone at the election of the stepfather no less than three times in each seven day period, such days to be nominated by the father within seven days from the date of this order. In the event that those dates conflict with any extracurricular activities, the father is to advise the stepfather within – to advise the father of a change in the days as and when that is necessary.

Each of the parties are to do all acts and things to attend at a family dispute resolution practitioner or centre and obtain a section 60I certificate.

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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