Rushbrook and Rushbrook - [2018] FCCA 1846

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUSHBROOK & RUSHBROOK

[2018] FCCA 1846

Catchwords:
FAMILY LAW – Parenting – mother seeks to move with the children from Suburb C to Suburb A where maternal family is – father and family based in Suburb C – parties agree they cannot afford to live in a suburb between the two.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), s60CA, 60CC, 60CC(3), 65D, 61DA(1), 61DA(2). 61DA(4), 64, 65DAA ,65DAA(1), 65DAA(2), 65DAA(3)

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 275
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4
Goodner v Jeppesen [2012] FamCA 463
Heath v Hemming (No.2) [2011] FamCA 749
Cowley v Mendoza (2010) 43 Fam LR 436

Applicant:

MS RUSHBROOK

Respondent:

MR RUSHBROOK

File Number:

MLC 9387 of 2015

Judgment of:

Judge Harland

Hearing dates:

29 - 31 January, 1 February and

13 April 2018

Date of Last Submission:

13 April 2018

Delivered at:

Melbourne

Delivered on:

10 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Walmsley QC

Solicitors for the Respondent:

NOH Legal Pty Ltd

Counsel for the Independent Children's Lawyer:

Mr Burns

Solicitors for the Independent Children's Lawyer:

Robert Halliday & Associates

ORDERS

That the Applicant Wife and the Respondent Husband have equal shared parental responsibility for the children of the marriage, [X] born 2006 and [Y] born 2010 (“the children”).
That the children live with the mother, provided that the mother lives within a 15 kilometre radius of the children’s schools.
That the children spend time with the Father during school terms as follows:
(a)From Thursday after school to Friday before school in Week 1; and
(b)From Thursday after school to Monday before school in Week 2.
The Father otherwise spend time with the children as follows:
(a)For one half of all school term holidays as agreed and failing agreement the first half commencing from the conclusion on the last day of the term until 5:00pm on the middle day of the said holiday period;
(b)For one half of the long summer holidays as agreed and failing agreement for the first half;
(c)From 11:00am on the Saturday preceding Father’s Day until 6pm on Sunday;
(d)On the Father’s birthday from after school until 7:00pm if a school day and from 10:500am to 5:00pm if a non-school day;
(e)On the children’s birthdays for a period of 2 hours at times to be agreed if the children are not in the Father’s care and in default of agreement from 5:00pm to 7:00pm; and
(f)Half of all religious holidays at times to be agreed and in default of agreement from 2:00pm to 7:00pm in odd numbered years and from 9:00am to 2:00pm in even numbered years.
The Husband’s time to be suspended as follows:
(a)From 11:00am on the Saturday preceding Mother’s Day until 6pm on Sunday;

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 Rushbrook and Rushbrook

Details

AGLC: Rushbrook and Rushbrook [2018] FCCA 1846
Case: [2018] FCCA 1846
Decision Date: 10 July 2018

CaseChat Overview and Summary

In *Rushbrook and Rushbrook*, the Applicant Wife and Respondent Husband sought orders concerning the parenting arrangements for their two children, born in 2006 and 2010. The proceedings were before Judge Harland.

The court was required to determine the nature of parental responsibility and the specific time arrangements for the children, including during school terms, school holidays, and on significant family days. Additionally, the court needed to address issues of parental access to school information, medical treatment details, and the circumstances under which parental time might be suspended. The court also considered the need for injunctions to prevent denigration of a parent, discussion of proceedings in the children's presence, and the use of corporal punishment.

Judge Harland made orders establishing equal shared parental responsibility for the children. The children were ordered to live with the mother, provided she resided within a 15-kilometre radius of their schools. Specific time arrangements were detailed for the father during school terms, including alternating weekends, and for school holidays, including half of all term and summer holidays. Further provisions were made for time on Father's Day, the father's birthday, the children's birthdays, and religious holidays, with specific default arrangements in the absence of agreement. The father's time was to be suspended on Mother's Day, the mother's birthday, the children's birthdays, and religious holidays, with specific conditions. The court also ordered that both parents have access to school notices and reports, be entitled to attend school functions, and inform each other of medical treatment and treating professionals. Injunctions were granted restraining denigration of a parent, discussion of proceedings in front of the children, and the use of corporal punishment. Provisions were also made for notification of significant events, changes in contact details, and the process for collecting children during changeovers.

Orders

Orders of the court

That the Applicant Wife and the Respondent Husband have equal shared parental responsibility for the children of the marriage, [X] born 2006 and [Y] born 2010 (“the children”).

That the children live with the mother, provided that the mother lives within a 15 kilometre radius of the children’s schools.

That the children spend time with the Father during school terms as follows:

(a) From Thursday after school to Friday before school in Week 1; and

(b) From Thursday after school to Monday before school in Week 2.

The Father otherwise spend time with the children as follows:

(a) For one half of all school term holidays as agreed and failing agreement the first half commencing from the conclusion on the last day of the term until 5:00pm on the middle day of the said holiday period;

(b) For one half of the long summer holidays as agreed and failing agreement for the first half;

(d) On the Father’s birthday from after school until 7:00pm if a school day and from 10:500am to 5:00pm if a non-school day;

(e) On the children’s birthdays for a period of 2 hours at times to be agreed if the children are not in the Father’s care and in default of agreement from 5:00pm to 7:00pm; and

(f) Half of all religious holidays at times to be agreed and in default of agreement from 2:00pm to 7:00pm in odd numbered years and from 9:00am to 2:00pm in even numbered years.

The Husband’s time to be suspended as follows:

(a) From 11:00am on the Saturday preceding Mother’s Day until 6pm on Sunday;

(b) On the Mother’s birthday from after school until 7:00pm if a school day and from 10:00am to 5:00pm if a non-school day;

(c) On the children’s birthdays for a period of 2 hours at time to be agreed if the children are not in the Mother’s care and in default of agreement from 5:00pm to 7:00pm;

(d) Half of all religious holidays at times to be agreed and in default of agreement from 2:00pm in odd numbered years.

That each of the parents be able to obtain copies of all school notices, newsletters, reports and school invitations and that both parents be entitled to attend school functions including parent teacher nights, sports days and other activities normally attended by parents at the children’s schools.

The Mother and Father shall inform each other as soon as practicable if the children or either of them require medical treatment or are prescribed prescription medication, provide full details of the treating Health Professionals involved in treating the children and each parent be at liberty to contact any of the said Health Professionals about the children’s treatment.

The Mother and Father be restrained by injunction from:

(a) Denigrating the other party or any member of their family to or in the presence or hearing of the children or permitting any other person to do so;

(b) Discussing these proceedings to or in the presence or hearing of the children or permitting any other person to do so;

That in the event that either party has a significant or special event they seek the children to attend that they provide the other parent with 14 written days’ notice of their desire to attend with the children. Make-up time will be provided the following weekend in the event of a variation to the time arrangements.

10.

That the parties inform each other of any changes to email address, landline and mobile numbers within 48 hours.

11.

That where changeovers do not take place at either of the children’s schools the father shall collect the children at the Mother’s residence at the beginning of the Father’s time and the Mother shall collect the children from the Father’s residence at the end of the Father’s time.

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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