Sadler and Roberts - [2016] FCCA 92

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADLER & ROBERTS

[2016] FCCA 92

Catchwords:
FAMILY LAW – Parenting – where there is dispute as to with whom the children of the relationship should live – where there is a lack of communication between the parents – where there is a lack of trust and respect between the parents – where the Family Report raises concerns and makes recommendations – where cultural considerations including Aboriginal culture loom large in the life of the children – where there is a concern that the father does not fully appreciate the significance of culture particularly with regard to the oldest son – where domestic and family violence have been significant during the relationship and after separation – where the cultural and educational needs of the children have not been balanced – where all parties agree that equal shared parental responsibility is rebutted.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238

Chappell & Chappell (2008) FLC 93-382

Heath & Hemming (No 2) [2011] FamCA 749

Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439

MRR v GR (2010) 240 CLR 461

Applicant:

MR SADLER

Respondent:

MS ROBERTS

File Number:

TVC 136 of 2007

Judgment of:

Judge Coker

Hearing dates:

26 and 27 November 2015

Date of Last Submission:

27 November 2015

Delivered at:

Townsville

Delivered on:

11 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr D. Honchin

Solicitors for the Applicant:

Stevenson & McNamara

Counsel for the Respondent:

Mr M. Hibble

Solicitors for the Respondent:

Aboriginal and Torres Strait Islander Women’s Legal Services NQ

Counsel for the Independent Children’s Lawyer:

Mr M. Fellows

Solicitors for the Independent Children’s Lawyer:

G A Murray

ORDERS

That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2004, Y born (omitted) 2005 and Z born (omitted) 2010, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
Notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
That the children live with the Mother.
That the Father spend time with the children at all reasonable times…

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 Sadler and Roberts

Details

AGLC: Sadler and Roberts [2016] FCCA 92
Case: [2016] FCCA 92
Decision Date: 11 March 2016

CaseChat Overview and Summary

In the matter of *Sadler and Roberts*, heard by Judge Coker, the dispute concerned parenting orders for three children. The previous parenting orders were discharged, and new orders were made regarding the children's long-term care, welfare, and development, as well as their day-to-day care and living arrangements.

The court was required to determine the extent of parental responsibility for significant decisions concerning the children's upbringing, including their education, religious and cultural upbringing, health, name, and changes to living arrangements that might impact time with the other parent. Additionally, the court needed to establish the children's primary residence, the father's time with the children, and specific arrangements for holidays, special days, and communication between parents and children. The court also addressed practical matters such as the provision of clothing and property, and issued injunctions to ensure the children's safety and well-being, including prohibitions against denigration, excessive alcohol consumption, illicit drug use, domestic violence, and exposure to sexually explicit material.

The court reasoned that the mother should have sole parental responsibility for long-term decisions, subject to a requirement to consult with the father. The children were ordered to live with the mother, with the father to spend time with them on alternate weekends and for half of the school holidays, with detailed provisions for the division of these periods. Specific arrangements were made for birthdays, Mother's Day, Father's Day, and Christmas. The court also mandated communication protocols, including telephone contact and the method of communication between parents, and outlined responsibilities for children's property and clothing. Injunctions were imposed to protect the children from harmful behaviours and to ensure parental privacy and cooperation. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2004, Y born (omitted) 2005 and Z born (omitted) 2010, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:

(a) a child’s education (both current and future);

(b) child’s religious and cultural upbringing;

(d) a child’s name;

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.

Notwithstanding order 2 herein:

(a) The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.

(b) The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.

That the children live with the Mother.

That the Father spend time with the children at all reasonable times as may be agreed between the parents in writing and, failing agreement, as follows:

(a) Each alternate week from after school on Thursday until the commencement of school on the following Monday, or Tuesday should the Monday be a public holiday or pupil free day;

(b) For one half of the gazetted school holidays, being the first half in even numbered years and the second half in odd numbered years.

That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:

(c) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;

(d) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(e) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;

(f) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

Changeovers, if not effected at the children’s school, including changeovers during holidays shall occur at 5.00pm at the McDonald’s Family Restaurant at (omitted).

Special Days

On the children’s birthday and on each of the parents’ birthdays, the children shall spend time with the parent with whom they are not living or spending time at all times as agreed in writing, and failing agreement:

(a) From after school until 8.00pm if it is a school day; and

(b) From 1.00pm until 8.00pm if it is a non-school day.

If Mothers’ Day or Fathers’ Day falls on a day when the children would otherwise be with the other parent, the children shall spend time with the parent whose special day it is from 9.00am until 5.00pm.

10.

On Christmas Day, unless otherwise agreed between the parents, the children shall remain with the parent with whom they are living or spending time and spend time with the other parent on Boxing Day from 9.00am until 5.00pm if they are in the same locality.

Cultural considerations and school and extra-curricular activities

11.

Each parent shall respect and encourage the children’s involvement in their own culture and the culture of the other parent and her or his family. Each parent shall ensure that the other parent is given timely and reasonable notice of cultural events or occasions and wherever reasonably possible shall make practical arrangements that allow the children to participate in such events.

12.

Each parent shall be entitled to attend extra-curricular school sporting and cultural activities involving any of the children, notwithstanding that the children may be in the care of the other parent at that time and shall respect the right of the children to move freely between each parent at such occasions.

Communication

13.

The children shall be at liberty to communicate with each parent by telephone or text message at any reasonable time.

14.

The parent with whom the children are not living or spending time may telephone the children on alternate days between 5.00pm and 6.00pm or at such other times as may be agreed between the parents in writing.

15.

For the purpose of the parents communicating with the children by telephone, the parents shall facilitate the children’s communication with the other parent by:

(a) Ensuring that the children have access to a phone which is charged and has credit;

(b) Providing the children with unmonitored and private phone calls;

16.

That the parents shall communicate with each other, except in the case of emergency, by text, email or letter.

Child’s property and clothing

17.

Each parent shall have sufficient items at their respective homes for the children’s day to day needs, including but not exclusively:

(a) School uniforms;

(b) Casual clothing;

18.

When the children spend time at the Father’s home, the Mother shall ensure that the children have all items necessary for school on the days that the children will be at the Father’s home.

19.

The parent with whom the children are living or spending time shall be responsible for ensuring that the children return any items of clothing or personal property that the children bring with them from the other parent’s home when they return to the other parent’s home.

Injunctions

20.

Each parent shall keep the other parent informed of any change of telephone contact number or address within 24 hours of such change occurring.

21.

Each parent shall respect the privacy of the other and not question the children about the other parent’s personal life.

22.

Neither parent shall denigrate the other parent or members of the other parent’s family and shall restrain any other person who attempts to denigrate the other parent or their family in the presence or hearing of the children.

23.

The parents are restrained from drinking to excess while the children are in their care.

24.

Neither parent shall smoke, inhale or otherwise administer or produce illicit drugs in the presence of the children.

25.

Each parent is restrained from exposing the children to domestic violence. For the purpose of this provision “family violence” has the same meaning as defined in section 4AB of the Family Law Act and includes, but is not limited to:

(a) An assault;

(b) Verbal abuse of a family member;

(d) Intentionally damaging or destroying property;

(e) Preventing a family member from making or keeping connections with this or her culture;

(f) Preventing a family member from making or keeping connections with this or her family, friends or culture;

(g) Intimidation, including shouting in a child’s face in a way that is likely to cause the child to be fearful;

(h) Threats of physical violence or damage to property;

(i) Personal put-downs.

26.

Neither parent is to expose the children to sexually explicit conduct or materials.

27.

Neither parent is to attend the home of the other parent without that parent’s written consent. A text message from the parent giving consent shall be sufficient “written consent”.

Health and Safety/Emergencies

28.

Each parent will notify the other as soon as practicable of any emergency involving the children’s health or welfare, including accidents or illness requiring medical attention and shall provide the other parent with relevant information including:

(a) The nature and circumstances of the accident or illness;

(b) The name and contact details of any person or agency providing medical or other intervention.

29.

These Orders are authority to the children’s school/educational facility and medical practitioner/s or other care providers, to provide any and all information as requested by each parent including:

(a) reports and photographs;

(b) newsletters that are usually available to parents;

(d) extra-curricular activities available to the children;

(e) any medical condition of any of the children;

(f) information relevant to the care or supervision of the children.

30.

That the Independent Children’s Lawyer be discharged.

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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