Sander and Abbey - [2018] FCCA 2295

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDER & ABBEY

[2018] FCCA 2295

Catchwords:
FAMILY LAW – Children are 6 & 3 years old - parties conferred with equal shared parental responsibility for children - high degree of conflict in parenting relationship –father wishes to take children interstate for Christmas each alternate year– ability to raise children without unreasonable interference from the other parent – beneficial relationships – court’s duty to deliver individual justice – father seeks a meaningful relationship with the children – best interest.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 64B, 65D, 65DAA, 65DAC, 65DAE

Evidence Act1995 (Cth), s.140.

Cases cited:
Fox v Percy (2003) 214 CLR 118
VRR & RR (2002) FLC 93-099
AMS v AIF (1999) CLR 160
Bartel & Schmucker (No 3) [2012] FamCA 1094
MRR v GR (2010) 240 CLR 461
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 FamLR 518
Bright v Bright (1995) FLC 92-570
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Gin & Hang [2010] FamCA 617

Applicant:

MR SANDER

Respondent:

MS ABBEY

File Number:

ADC 2749 of 2016

Judgment of:

Judge Brown

Hearing date:

8 May 2018

Date of Last Submission:

12 July 2018

Delivered at:

Adelaide

Delivered on:

17 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Adelaide Family Law

Counsel for the Respondent:

Mr Roberts

Solicitors for the Respondent:

Andrew Hill & Co

ORDERS

That the children [X] born 2012 and [Y] born 2014 live with the mother.
The parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said children.
Each parent has responsibility for making decisions concerning the day to day care, welfare and development of the children whilst in his or her care.
That the children spend time with the father during the school term as follows:
(a)From 1 July 2018 from the conclusion of school on Friday (or 6:00pm if a non-school day) to 6:00pm on Sunday and in each alternate week thereafter;
(b)Every Wednesday from the conclusion of school at 3:00pm until 7:30pm; and
(c)From the start of 2020, time be extended on the intervening Wednesday from the conclusion of school to conclude at the commencement of school on Thursday.
During both the short term and Christmas school holidays:
(a)From the date of these orders for three (3) consecutive nights on each alternate week from Friday 9:00am until Monday 9:00am save and except for the last Friday of the school term;
(b)From 1 January 2019 for four (4) consecutive nights on each alternate week from Friday 9:00am until Tuesday 9:00am;
(c)From 1 January 2020 for five (5) consecutive nights each alternative week from Friday 9:00am to Wednesday 9:00am;
(d)From 1 January 2021 for six (6) consecutive nights each alternative week from Friday 9:00am to Thursday 9:00am;
(e)From 1 January 2022 for seven (7) consecutive nights each alternative week from Friday…

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 Sander and Abbey

Details

AGLC: Sander and Abbey [2018] FCCA 2295
Case: [2018] FCCA 2295
Decision Date: 17 August 2018

CaseChat Overview and Summary

In the matter of *Sander and Abbey*, heard by Judge Brown, the dispute concerned parenting arrangements for two children, [X] and [Y]. The court was required to make final orders regarding the children's living arrangements, parental responsibility, and the time they would spend with each parent.

The court was tasked with determining the specific orders for the children's residence, the allocation of parental responsibility for long-term and day-to-day decisions, and the detailed schedule for the children's time with each parent, including during school terms, holidays, and special occasions. Additionally, the court needed to address practical matters such as handover arrangements, communication protocols between parents, and restrictions on certain behaviours. The court also considered the children's maturity, sex, and background, and the general preferability of making final orders in children's matters.

Judge Brown reasoned that the existing arrangements, which saw the children's time with the father increase annually, were practical and in the children's best interests, reflecting their increasing maturity and evolving relationships with both parents. The court noted the parties' agreement on equal shared parental responsibility. The judge found that the mother, Ms Abbey, had some difficulty in compromising, whereas the father, Mr Sander, demonstrated a child-focused approach and willingness to compromise. The court's assessment of Mr Sander's parental capacity led it to conclude that restrictions sought by Ms Abbey were unwarranted.

The court made orders that the children live with the mother and that the parties share equal parental responsibility for long-term decisions, with each parent responsible for day-to-day decisions while the children are in their care. Detailed provisions were made for the children's time with the father, including during school terms and holidays, with gradual increases in time over several years. The orders also stipulated arrangements for special occasions, handovers, communication, and prohibited certain behaviours such as denigrating the other parent in the children's presence. The court also ordered that the parties attend mediation when the younger child turns seven to discuss future parenting arrangements.

Orders

Orders of the court

That the children [X] born 2012 and [Y] born 2014 live with the mother.

The parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said children.

Each parent has responsibility for making decisions concerning the day to day care, welfare and development of the children whilst in his or her care.

That the children spend time with the father during the school term as follows:

(a) From 1 July 2018 from the conclusion of school on Friday (or 6:00pm if a non-school day) to 6:00pm on Sunday and in each alternate week thereafter;

(b) Every Wednesday from the conclusion of school at 3:00pm until 7:30pm; and

(c) From the start of 2020, time be extended on the intervening Wednesday from the conclusion of school to conclude at the commencement of school on Thursday.

During both the short term and Christmas school holidays:

(a) From the date of these orders for three (3) consecutive nights on each alternate week from Friday 9:00am until Monday 9:00am save and except for the last Friday of the school term;

(b) From 1 January 2019 for four (4) consecutive nights on each alternate week from Friday 9:00am until Tuesday 9:00am;

(d) From 1 January 2021 for six (6) consecutive nights each alternative week from Friday 9:00am to Thursday 9:00am;

(e) From 1 January 2022 for seven (7) consecutive nights each alternative week from Friday 9:00am to Friday 9:00am.

That notwithstanding the orders made in paragraphs 4 and 5 herein the children shall spend time with the parties on special occasions as follows:

(a) With the mother on Mother’s Day from 6:00pm on Saturday evening proceeding Mother’s Day to 6:00pm on Mother’s Day;

(b) With the Father on Father’s Day from 6:00pm on Saturday evening proceeding Father’s Day to 6:00pm on Father’s Day;

(c) On the child’s birthday so that the child spends at least three hours on her birthday with the parent who is not providing a residence for her on the occasion of her birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm;

(d) During each Easter as follows:

(i) With the father in 2019 from 5:30pm Maundy Thursday to 6pm on Easter Saturday in each alternate year thereafter;

(ii) With the mother in 2019 from 5:30pm on Easter Saturday to 6pm on Easter Monday and in each alternate year thereafter;

(iii) With the father in 2020 and for the same. In the alternate year thereafter from 5:30pm on Easter Saturday until 5:30pm on Easter Monday; and

(iv) With the mother in 2020 and for the same. In each alternate year thereafter from 5:30pm on Easter Thursday until 5:30pm on Easter Saturday.

(e) Commencing in 2018, and in each alternate year thereafter the mother spend time with the children from 9:00am on 23 December to 6:00pm on 30 December; and

(f) Commencing in 2019, and in each alternate year thereafter the father spend time with the children from 9:00am on 23 December to 6:00pm on 30 December, with liberty to take the children to New South Wales to spend time with the paternal family over Christmas.

That handovers, save and except those that are to be conducted at the children’s school pursuant to order 4 herein be as follows:

(a) At the father’s home at the commencement of the children’s time with the father;

(b) At the mother’s home at the conclusion of the children’s time with the father; and

That the parties be at liberty to nominate an agent to attend at handovers, if they are unable to attend, and that this is communicated to the other parent via email or text message.

That the parties be restrained and injunctions be granted restraining each of them from:

(a) Discussing the proceedings with the children or allowing any other person to do so;

(b) Denigrating the other party to or, in the presence of the children or allowing any other person to do so;

(c) Uploading official school photos or videos of the said children to social media or other social media platforms or external websites; and

(d) Harassing or intimidating the other party or allowing any other party to do so.

10.

The mother and father do:

(a) Facilitate the said children communicating with the other parent by telephone at any that the said child/children reasonably request to telephone the other parent;

(b) Facilitate the parent who is not spending time with the children pursuant to previous paragraphs herein to speak with the said children by telephone at any reasonable time;

(c) Keep the other parent informed via email or text message as to any significant medical issues concerning either of the said children and do authorise the other parent to consult with and obtain advice from the said children’s medical or other treating practitioners;

(d) Forthwith advise the other parent by telephone, text message or email in the event of any illness or accident suffered by either of the said children requiring hospitalisation or other facility to which the child/children have been admitted or treated;

(e) Authorise the other parent to receive any and all information from any treating medical practitioner, health professional, therapist or counsellor upon whom the child attends from time to time;

(f) Authorise the other parent to receive significant medical and dental records as well as any records maintained by any health professional, therapist or counsellor and keep the other informed of the names and addresses of all treating medical practitioners, health professionals, therapists or counsellors;

(g) Be able to attend all of the said children’s school functions and activities including parent/teacher nights, sports day, school concerts and any other activities or events which the parents are normally invited to participate and attend;

(h) That both the father and mother be able to attend excursions or camps with the children, with the father to provide seven (7) days’ notice to the mother; and

(i) Authorise any school which either of the said children attends from time to time to provide the other parent at that parent’s sole expense in all things copies of all school newsletters, school reports and official school photographs.

11.

The father be at liberty to travel interstate with the children during the school holidays in the block of time allocated to him, and he will advise the mother of the details of the travel and relevant contact details.

12.

That periods of overseas travel be limited to no more than seven (7) days until the child [Y] is 8 years old (2022) and thereafter for periods of up to twelve (12) days.

13.

The father be at liberty to apply for passports for the children, at his expense and will hold the passports.

14.

That the parties attend community based mediation when [Y] turns 7 years of age (2021) to discuss future parenting arrangements for the children, specifically whether it is appropriate that there be a more equal allocation of parenting time between the parties.

Background

Background to the litigation

In my assessment, the restriction sought by Ms Abbey is unwarranted, given my assessment of the parental capacity of Mr Sander. I do not consider that he would knowingly place the children in a situation in which they were at risk or unduly emotionally upset. I do not consider that his parental judgment is flawed, as suggested by Ms Abbey.·Section 60CC(3)(g) – maturity, sex and background of the children concerned. The parties have been in dispute with one another since July of 2016, when [X] was four and [Y] not yet two years of age. Their separation was emotionally challenging and resulted in the sale of their former family home. There is nothing easy about this process, which necessarily involves a difficult process of emotional adjustment. At the time, as is the case now, Mr Sander was engaged in the full time workforce. Ms Abbey, of her own volition, elected to describe herself as a “stay at home mother”. She had been able to take extended maternity leave in order to discharge her family obligations. These factors, for obvious reasons, have dictated the practicality of the parenting orders, which have been made in the period since the parties separated. It was neither practical nor calculated to be in the children’s best interests for there to have been an equal time regime implemented for the children. It is to the parties’ mutual credit that they have been able to agree on a regime which sees the children’s time with their father increase annually by gradual amounts. In my view, this in keeping with the obvious fact that, as time unfolds, the children will both become more mature and their relationship with each of the parents will evolve. It is also congruent with their agreement that they will have equal shared parental responsibility for [X] and [Y].·Section 60CC(3)(l) – preferability of making a final order. Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. It is also the case that one of the frequent consequences of litigation, including that between parents, is to lead to the polarisation of the positions of the parties concerned. As these proceedings eloquently demonstrate, if a forum is provided in which to ventilate their disagreements, it will be utilised. Children are usually best parented by parents who trust one another and who are able to respond empathetically and mutually to the changes which will inevitably occur as their children change and develop. After all change is a corollary of life. Good parents must be able to adapt to such change without utilising it as an opportunity merely to disagree about its implications. The parties have been able to agree very many of the issues in dispute between them. In my view, this is attributable, in large part, to Mr Sander’s child focus and willingness to compromise. Due to her personality, Ms Abbey has some difficulties in letting issues go and working towards the middle ground. Dr E believes that with the resolution of these proceedings, it will be easier for her to work constructively with Mr Sander in future.

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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