Riley and Allen - [2016] FamCA 603

FAMILY COURT OF AUSTRALIA

RILEY & ALLEN

[2016] FamCA 603

FAMILY LAW – Where the mother has sole parental responsibility for one child – where the father has sole parental responsibility for the other child – where one child lives with the mother – where the other child lives on a week-about basis – where one child is not required to spend time or communicate with the father – where there has been extensive family violence between the parties – where an order for equal shared parental responsibility is not in the child’s best interests

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC
Evidence Act 1995 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
K v R (1997) 22 FamLR 592
Mauldera & Orbel (2014) FLC 93-602
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re W (sex abuse – standard of proof) [2004] FamCA 768
T v N [2001] FMCAfam 222
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT:

Mr Riley

RESPONDENT:

Ms Allen

INDEPENDENT CHILDREN’S LAWYER:

Ms Meehan

FILE NUMBER:

TVC

511

2012

DATE DELIVERED:

26 July 2016

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

11, 14, 15 and 16 September 2015, 30 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hibble

SOLICITORS FOR THE APPLICANT:

Gun Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fellows 11, 14, 15 and 16 September 2015; Ms Williams 30 May 2016

SOLICITORS FOR THE RESPONDENT:

Shuttleworth Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Collins

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER”

M M Meehan

Orders

All previous parenting orders be discharged.

Parental responsibility

The mother have sole parental responsibility for the child, B born … 2003 (“B”) in relation to long-term parenting issues and the father have sole parental responsibility for the child C born … 2007 (“C”) in relation to long-term parenting issues, save that neither parent will change the name of either of the children.
Notwithstanding order 2, the decision on which sports are to be played by C will be decided as follows:
(a)TEAM SPORT
(i)     In even numbered years, the mother will choose the sport from a list of three provided by the father after having consulted C;
(ii)    In odd numbered years, the father will choose the sport from a list of three provided by the mother after having consulted C;
(iii)     Each parent will take C to his sport when he is living with them;
(b)INDIVIDUAL SPORT
(i)     C will be permitted to play an individual sport of his or each parent’s choice while living with the respective parent;
(ii)    The other parent will be required to take C to any competition or fixtures for that individual sport that might fall on their respective weekends.

B living arrangements

B live with the mother.

C living arrangements

C live with the parents on a week-about basis from the conclusion of school on each Friday or from 3:00pm if…

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 Riley and Allen

Details

AGLC: Riley and Allen [2016] FamCA 603
Case: [2016] FamCA 603
Decision Date: 26 July 2016

CaseChat Overview and Summary

This case concerned parenting orders made by Tree J in relation to two children, B and C. The dispute involved the allocation of parental responsibility, living arrangements, holiday time, communication between parents, and the requirement for mediation before further proceedings. The court was tasked with determining the best interests of the children in light of the parents' ongoing conflict.

The central legal issues before the court were how to best provide for the long-term welfare of B and C, including decisions regarding their upbringing, where they would live, and how time would be spent with each parent. The court also had to consider the appropriate communication protocols between the parents and the necessity of mandatory mediation to resolve future disputes. Furthermore, the court needed to address the role of an Independent Children's Lawyer and a s 65L supervisor.

Tree J discharged previous parenting orders and made new arrangements. The mother was granted sole parental responsibility for B regarding long-term issues, while the father received the same for C. However, specific provisions were made for C's participation in sports, with a rotating choice between parents in even and odd years, and provisions for individual sports. B was ordered to live with the mother, and C was to live with the parents on a week-about basis, with detailed arrangements for changeovers. Holiday time, particularly Christmas, was also specifically allocated. The court mandated email communication between parents, prohibited telephone calls to children while with the other parent, and ensured children could contact the other parent upon request. Crucially, both parents were required to attend mediation before initiating further proceedings. The Independent Children's Lawyer and supervisor were to be discharged after the appeal period or determination of any appeal, after explaining the orders to the children. All other extant applications were dismissed.

Orders

Orders of the court

All previous parenting orders be discharged.

Parental responsibility

The mother have sole parental responsibility for the child, B born … 2003 (“B”) in relation to long-term parenting issues and the father have sole parental responsibility for the child C born … 2007 (“C”) in relation to long-term parenting issues, save that neither parent will change the name of either of the children.

Notwithstanding order 2, the decision on which sports are to be played by C will be decided as follows:

(a) TEAM SPORT

(i) In even numbered years, the mother will choose the sport from a list of three provided by the father after having consulted C;

(ii) In odd numbered years, the father will choose the sport from a list of three provided by the mother after having consulted C;

(iii) Each parent will take C to his sport when he is living with them;

(b) INDIVIDUAL SPORT

(i) C will be permitted to play an individual sport of his or each parent’s choice while living with the respective parent;

(ii) The other parent will be required to take C to any competition or fixtures for that individual sport that might fall on their respective weekends.

B living arrangements

B live with the mother.

C living arrangements

C live with the parents on a week-about basis from the conclusion of school on each Friday or from 3:00pm if a Friday falls on a non-school day, with changeover to occur each Friday as follows:

(a) If it is a school day, changeovers are to occur at the conclusion of school with the parent whose home C is moving to (or their agent who is known to C) to collect C from School;

(b) If it is a non-school day, changeovers are to take place at 3:00pm on Friday with the parent whose home C is leaving (or their agent who is known to C) to deliver C to the McDonalds Restaurant in Suburb D.

Holiday time

Notwithstanding the sequence of the week-about arrangement as per order 5, C is to spend one half of the Queensland gazetted Christmas School holidays as follows:

(a) In even numbered years – from the conclusion of school on the last day of term to 3:00pm on the day that falls 21 days later, with the mother; and

(b) In odd numbered years – from the conclusion of school on the last day of term to 3:00pm on the day that falls 21 days later, with the father;

(c) The parent whom C is living during the second half of the school holidays will return C to school at the commencement of school but for the purposes of that changeover, that parent will have responsibility until the conclusion of school on that day.

Communication

The parents are to communicate with each other by email, except in an emergency, when they are to communicate by text message.

There will be no order for the parents to telephone the children while they are in the care of the other parent.

Notwithstanding anything in these orders, neither parent is to prevent and must allow both children to contact the other parent upon a reasonable request being made to do so.

Mediation

10.

Before either parent institutes proceedings in relation to the children, both parents must attend mediation with an approved mediation service and make a genuine attempt to reach a compromise or an agreement.

Independent Children's Lawyer and s 65L supervisor

11.

The Independent Children's Lawyer and s 65L supervisor be discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

12.

The Independent Children's Lawyer is to explain the orders to the children with the assistance of the s 65L supervisor as soon as possible.

Dismissal of proceedings

13.

Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

NOTATION:

A. Neither parent will denigrate the other parent, or permit any other person to do so in the presence of or to the children.

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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