Rowe and Helbig - [2013] FCCA 319

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE & HELBIG

[2013] FCCA 319

Catchwords:
FAMILY LAW – Parenting – primary issues resolved by consent – court required to determine discrete issues – significant conflictual relationship between parents – no question of principle.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA and Part VII

Goode and Goode [2006] FamCA 1346
MRR v. GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant:

MR ROWE

Respondent:

MS HELBIG

File Number:

PAC 5421 of 2010

Judgment of:

Judge Foster

Hearing dates:

13, 14 & 15 May 2013

Date of Last Submission:

15 May 2013

Delivered at:

Wollongong

Delivered on:

21 May 2013

REPRESENTATION

Counsel for the Applicant:

Ms Barnett

Solicitors for the Applicant:

Pryor Tzannes & Wallis

Counsel for the Respondent:

Ms Petrie

Solicitors for the Respondent:

Ian Harper & Co

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Newcastle

ORDERS

That all previous orders in relation to parenting be discharged.
That the mother and father have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2008.
That the children live with the mother.
That the children spend time with the father as agreed between the mother and father and in default of agreement as follows:
(a)During school term:
(i)Until the commencement of school term 2014 in a two-week cycle:
A.In week one from after-school Wednesday (or 3:30 PM if not a school day) until 7:00 PM provided that the children shall have their evening meal with the father before they are returned to the mother and thereafter from after-school Friday (or 3:30 PM if not a school day) until Sunday at 5:00 PM; and
B.In week two from after-school Wednesday (or 3:30 PM if not a school day) until 7:00 PM provided that the children shall have their evening meal with the father before they are returned to the mother.
(ii)From the commencement of school term 2014 in a two-week cycle:
A.In week one from after-school Friday (or 3:30 PM if not a school day) until before school Monday (or 9:00 AM if not a school day); and
B.In week two from after-school Thursday (or 3:30 PM if not a school day) until Friday before school (or 9:00 AM if not a school day).
(b)During school holidays:
(i)In 2013:
A.During the Term 2 and Term 3 school holiday periods for a period of four consecutive nights starting from the last day of school term from the conclusion of school until the fifth day at 4:30 PM; and
B.During the Christmas school holiday periods for three separate blocks of four consecutive nights on dates to be agreed between the mother and father and if there is no agreement starting on the last day of school from after-school until the fifth day at 4:30 PM, then starting on 2 January at 10:00 AM until 6 January at 4:30 PM and then for four…

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 Rowe and Helbig

Details

AGLC: ROWE & HELBIG [2013] FCCA 319
Case: [2013] FCCA 319
Decision Date: 21 May 2013

CaseChat Overview and Summary

This case involved parenting orders concerning two children, [X] and [Y], born in 2005 and 2008 respectively. The dispute was before Judge Foster.

The court was required to determine the terms of parenting orders, including the allocation of parental responsibility, the living arrangements for the children, and the specific time each parent would spend with the children during school terms, school holidays, and on special occasions. The court also needed to address communication protocols between the parents, the management of the child [X]'s diabetes, and injunctions to prevent denigration of the other parent.

Judge Foster ordered that all previous parenting orders be discharged. The mother and father were granted equal shared parental responsibility. The children were to live with the mother, and specific, detailed arrangements were set out for the children's time with the father, including provisions for school terms, school holidays, Father's Day, birthdays, and Easter. The orders also included provisions for communication between parents and children, the management of [X]'s diabetes, and injunctions restraining denigration and ensuring the children's privacy and safety. Further orders mandated family therapy, a Parenting after Separation course, and a change of the children's surname to Helbig-Rowe.

Orders

Orders of the court

That all previous orders in relation to parenting be discharged.

That the mother and father have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2008.

That the children live with the mother.

That the children spend time with the father as agreed between the mother and father and in default of agreement as follows:

(a) During school term:

(i) Until the commencement of school term 2014 in a two-week cycle:

A. In week one from after-school Wednesday (or 3:30 PM if not a school day) until 7:00 PM provided that the children shall have their evening meal with the father before they are returned to the mother and thereafter from after-school Friday (or 3:30 PM if not a school day) until Sunday at 5:00 PM; and

B. In week two from after-school Wednesday (or 3:30 PM if not a school day) until 7:00 PM provided that the children shall have their evening meal with the father before they are returned to the mother.

(ii) From the commencement of school term 2014 in a two-week cycle:

A. In week one from after-school Friday (or 3:30 PM if not a school day) until before school Monday (or 9:00 AM if not a school day); and

B. In week two from after-school Thursday (or 3:30 PM if not a school day) until Friday before school (or 9:00 AM if not a school day).

(b) During school holidays:

(i) In 2013:

A. During the Term 2 and Term 3 school holiday periods for a period of four consecutive nights starting from the last day of school term from the conclusion of school until the fifth day at 4:30 PM; and

B. During the Christmas school holiday periods for three separate blocks of four consecutive nights on dates to be agreed between the mother and father and if there is no agreement starting on the last day of school from after-school until the fifth day at 4:30 PM, then starting on 2 January at 10:00 AM until 6 January at 4:30 PM and then for four consecutive nights preceding the first day of term one from 10:00 AM on the commencing day until before school on the first day of school term.

(ii) In 2014:

A. During the Term 1, 2 and 3 school holiday periods for a period of five consecutive nights, starting from the last day of school term from the conclusion of school until the sixth day at 4:30 PM; and

B. During the Christmas school holiday periods for three separate blocks of five consecutive nights on dates to be agreed between the mother and father and, if there is no agreement, starting on the last day of school from after-school until the sixth day at 4:30 PM, then starting on 2 January at 10:00 AM until 7 January at 4:30 PM and then for five consecutive nights preceding the first day of term one from 10:00 AM on the commencing day until before school on the first day of school term.

(iii) Thereafter from the commencement of school term in 2015:

A. During the term 1, 2 and 3 school holiday periods for half of all of the school holiday periods as agreed between the mother and father and if there is no agreement for the first half in odd numbered years starting on the last day of school from after-school and ending at 4:30 PM on the midpoint of the school holiday period and for the second half in even numbered years starting at 10:00 AM on the midpoint day of the school holiday period and ending before school on the first day of the next school term; and

B. During the Christmas school holiday periods for half of all of the school holiday period as agreed between the mother and father and if there is no agreement for the first week and every alternate week thereafter starting from after-school and ending at 4:30 PM one week later in odd-numbered years and for the second week and every alternate week thereafter starting at 10:00 AM in week one and ending at 4:30 PM one week later in the even numbered years.

(c) On the Father’s Day weekend from after-school Friday (or 3:30 PM if not a school day) until Monday before school provided always that the father’s time pursuant to this order shall otherwise be suspended on the Mother’s Day weekend from after-school Friday until before school Monday.

That in the event that the children are living with the mother for the last weekend of the school holiday period, then the children are to spend time with their father for the first weekend of school term and accordingly the first week of the school term is “week one” pursuant to orders made above.

That in the event that the children are spending time with their father during the last weekend of the school holiday period, then the children are to be living with their mother for the first weekend of the school term and accordingly the first week of the school term is “week two” pursuant to orders made above.

That at Christmas, the arrangements for the children pursuant to these orders are suspended so as to provide that the children spend time with the parents as follows:

(a) With the father from Christmas Eve at 9:00 AM until Boxing Day at 6:00 PM in even numbered years; and

(b)

With the mother from Christmas Eve at 9:00 AM until Boxing Day at 6:00 PM in odd numbered years.

That on each of the children’s birthday’s, the mother and the father are each to spend four hours time with the children, as agreed between the mother and father and, in default of agreement, the children are to spend time with the parent who the child is not already with from after-school (or 3:30 PM if not a school day) until 7:30 PM.

That in the event that the Easter Holiday period falls wholly outside school holiday periods then the children shall spend time with the mother and father as follows:

(a) With the father from after-school on the last day prior to the Easter break until before school on the day immediately following the Easter break in odd-numbered years; and

(b) With the mother from after-school on the last day prior to the Easter break until before school on the day immediately following the Easter break in even numbered years.

10.

That the children’s time with the father, starting or ending on school days, is to be facilitated by the father, or his agent known to the children, collecting the children from their school at the start of that time and the father, or his agent known to the children, delivering the children to their school at the end of that time.

11.

That the children’s time with the father, starting or ending on non-school days, is to be facilitated by the mother, or her agent known to the children, delivering the children to the father or, his agent known to the children, at [omitted], or such other location as agreed between the mother and father in writing, at the start of the children’s time with the father and the father or his agent known to the children delivering the children to the mother or her agent known to the children at that same place or such other location as agreed between the mother and father in writing at the end of the children’s time with the father.

12.

That the mother be restrained by injunction from permitting the maternal grandparents from attending or being in the near vicinity of changeovers or attending at the child [X]’s specialist medical appointments in respect of which the father is to attend.

13.

That in the event that the father is unable to spend time with the children, the father is to notify the mother at least 48 hours it advance of such time, or as soon as practicable in the event of ill-health or emergency, with such notification where practicable to be by an SMS or e-mail communication.

14.

That the mother and father are each restrained by injunction from discussing these court proceedings or the arrangements for the children’s time with the other parent during the changeovers in relation to the children provided always that the mother and father are permitted to discuss management of [X]’s diabetes.

15.

That the mother and father each purchase at least one school and sports uniform for each of the children, and such uniforms shall not be regarded as the property of either parent but for the use of the children.

16.

That the children are to communicate with the father by telephone on Tuesdays, during the time the children are with the mother, between 6:00 PM and 7:00 PM, with such telephone communication to be facilitated by the father calling the mother’s mobile telephone number, and with the mother to facilitate the children speaking on the telephone to the father, provided always that the mother is to provide the children with privacy during their conversation with the father and use her best endeavours to ensure that any other person in a household does the same.

17.

That the children are to communicate with the mother by telephone on the Saturdays, during the time the children are with the father, between 5 PM and 6 PM with such telephone communication to be facilitated by the mother calling the father’s mobile telephone number, and with the father to facilitate the children speaking on the telephone to the mother, provided always that the father is to provide to the children privacy during such telephone conversations and use his best endeavours to ensure that any other person in the household does the same.

18.

That, without admission, the mother and father are to use their best endeavours to ensure that the children are not exposed to the parents naked genitalia.

19.

That, without admission, the mother and father are restrained from giving the children alcohol and they are to use their best endeavours to ensure that the children are not given alcohol by any other person.

20.

That, without admission, the mother and father are to use their best endeavours to ensure that the children are not exposed to pornography, and they are to use their best endeavours to ensure that there is no pornography on computers or other electronic devices to which the children could have access to within each of their households, and they are to activate child lock anti-porn software on such devices when the children are in their respective care.

21.

That the mother and father shall use their best endeavours not to leave the child [X] in the care of another person for any period of time, unless that person has been trained by the child’s general practitioner, or either parent, in relation to the management of the child’s diabetes.

22.

That the mother and father shall, within 48 hours from the date of these orders, inform each other in writing, including SMS or email communication, of their residential address, if applicable landline phone number and mobile telephone numbers and e-mail address and advise the other within 24-hours of any change to those details.

23.

That the mother and father are each entitled to attend any school, sport, extra curricular or other public event involving either or both of the children.

24.

That the mother and father are each to inform the other in writing, as soon as practicable, and in any event not less than 48 hours of any specialist or medical or other health professional appointments, in relation to either of the children, with such writing to include SMS or e-mail communication.

25.

That the mother and father shall each do all acts and things necessary to ensure that the other parent is authorised to be provided with all reports by any specialist or other medical or health practitioner attended by either of the children.

26.

That in relation to specialist appointments relating to the child [X]’s diabetes, that unless otherwise agreed between the parties in writing, they shall attend each of those consultations on an alternate basis with the child, with the first of such consultations following the making of these orders to be attended by the father:

(a) Provided always that the father shall be responsible for payment of costs of such consultations that he attends with the child; and

(b) Provided always that the non-attending parent shall be at liberty to obtain such information from the medical specialist as may be reasonably required, and be at liberty to make their own appointment to attend alone on that specialist at their own expense should they wish; and

(c) Provided that the mother and father shall keep each other informed in a timely fashion, and in any event not less than 48 hours of each, and every appointment made for the child [X] to attend upon his medical specialist.

27.

That the mother and father are each authorised to receive copies of all of the children’s school reports and merit cards, any written material pertaining to each of the child academic and extracurricular activities.

28.

That in the event that either of the children are hospitalised or receive medical attention from a medical or other health practitioner the parent with whom the child is with at that time is to notify the other parent as soon as practicable after the first contact with the medical or health practitioner, medical centre or hospital

29.

That the mother and father are restrained by injunction from denigrating the other parent, or any member of the other parent’s family, in the presence or hearing of either of the children and from questioning the children about the time spent in the other parent’s household for the purposes of establishing non-compliance with that parent with orders 18 to 21 inclusive or from allowing any member of their family or other person from so doing.

30.

That the mother and father are restrained by injunction from allowing either of the children to remain in the presence or hearing of any person denigrating the other parent or any member of the other parent’s family.

31.

That within 14 days from the date of these orders the mother and father are to contact clinical psychologist Ms P, family therapist, [mobile phone number omitted] to make an appointment for the purposes of family therapy and to assist the mother and father with any anxieties and with each of the mother and father’s first appointments to be scheduled in August 2013 on the first dates available to the family therapist and:

(a) That the parents are to facilitate each of the children attending upon the family therapist for family therapy as directed by the family therapist and are to pay equally for the costs of such children’s therapy;

(b) That the mother and father are to attend at appointments and to facilitate the children’s attendance at appointments with the family therapist as directed by the family therapist for at least six months from the date of these orders unless the family therapist directs either of the parents that appointments are no longer required before that date; and

(c) That leave is granted to the Independent Children’s Lawyer to provide copies of the expert reports of Dr R dated 9 June 2011 and 1 May 2013 to the family therapist.

32.

That within 14 days from the date of these orders, the mother and father do all acts and things necessary including the signing of any documents to change the children’s surname from “Rowe” to “Helbig-Rowe” on their birth certificates and any legal documents.

33.

That within 14 days from the date of these orders the mother and father do all things necessary to enrol in a Parenting after Separation course and attend the first available course.

34.

That the mother and father be restrained from enrolling either child in any after-school or weekend activities which impose on the other parent’s time with the children, without the written consent of the other parent, and shall ensure that each child attends the agreed activities during the period the children are in their respective care.

35.

That the parties shall adhere to and follow [X]’s diabetes Care Plan as formulated by the child’s general practitioner or medical specialist, and shall:

(a) Ensure that test and hypo kit and medications are with the child at all times;

(b) Monitor the child for symptoms of hyper or hypoglycaemia;

(d) Take prompt corrective action in accordance with the care plan, providing food and/or insulin as required;

(e) Record and provide written handover notes to the other party directly or via school at changeover covering at least the last 48-hour is in which the child has been in that parent’s care including details of:

(i) Any insulin given to the child including amount, type of insulin and timing;

(ii) All food and drink consumed and activity levels; and

(iii) Notes as to any illness, upset or injury which may impact on the child’s well-being or the child glucose levels.

(f) When the children are to spend time with the father, the mother will provide the father, either directly or via the school for occasions when the father collect the children from school with the necessary medication, test monitor and hypo kit required for [X]’s diabetes management;

(g) In the event that either the mother or father wishes to vary or depart from [X]’s core insulin regime, they shall first consult with the child’s general practitioner or treating specialist and discuss same with the other parent; and

(h) Use their best endeavours to implement an electronic record of information referred to in (e) above and other information relevant to the child [X] that can readily be accessed by both of them and if possible by the child’s medical practitioners.

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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