SANTOS & DERRICKS - [2020] FCCA 150

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTOS & DERRICKS

[2020] FCCA 150

Catchwords:
FAMILY LAW – Parenting – long history of conflict between the parties and protracted litigation – significant geographical distance between the parents’ residences – the subject child’s relationship with his siblings in both households is a crucial consideration – order for equal shared parental responsibility sought by consent despite volatile co-parenting relationship – orders made for the child to live with the Mother and spend time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3)(a) – (m)

Cases cited:

Collu & Rinaldo [2010] FamCAFC 53

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC ¶93-375

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MR SANTOS

Respondent:

MS DERRICKS

File Number:

CAC 825 of 2015

Judgment of:

Judge Neville

Hearing dates:

21 & 22 November 2018; 10 May 2019

Date of Last Submission:

22 July 2019

Delivered at:

Canberra

Delivered on:

31 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr R Wilkinson

Solicitors for the Applicant:

Rodney Kennedy Solicitors Pty Ltd

Counsel for the Respondent:

Mr J Moffatt

Solicitors for the Respondent:

KPW Lawyers

Counsel for the Independent Children’s Lawyer:

Ms M Davis

Solicitors for the Independent Children’s Lawyer:

Tarella Law

ORDERS

All previous parenting Orders regarding the child, [X] (born: … 2012) (“the child”), be and are hereby discharged.

Parental responsibility

The parents have equal shared parental responsibility for the child.
By this Order, each parent authorises any school or child care facility that the child attends, to give to the other parent any information regarding the child, including but not limited to school newsletters, school photo order forms, school reports, examples of school work and each parent is at liberty to attend any school function to which parents are normally invited.
By this Order, each parent authorises any doctor, health care provider or health care facility who treats the child, to give to the other parent any information regarding the child.
In order to facilitate Order 4 above, each parent shall advise the other within two days of the child attending any appointment with a health care provider:-
(a)of any appointment attended by the child;
(b)the name of the doctor or health care provider seen by the child;
(c)the name, address and phone number of the doctor, health care provider or health care facility;
(d)any recommendation made by the health care provider;
(e)any medication prescribed for the child together with the directions for administration.
In the event of an emergency or hospitalisation, each parent is to notify the other as soon as reasonably practicable via text message.
The parties are to communicate about the child:-
(a)in the event of an emergency or hospitalisation regarding the child, each parent is to notify the other as soon as reasonably practicable via text message;
(b)for general information including medical information, by using the “Talking Parents” mobile application to exchange information regarding [X]; and
(c)in the event the mobile…

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 SANTOS & DERRICKS

Details

AGLC: Santos and Derricks [2020] FCCA 150
Case: [2020] FCCA 150
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the matter of SANTOS & DERRICKS, Judge Neville of the Family Court of Australia considered a dispute concerning the parenting arrangements for the subject child, [X], born in 2012. The case involved a long history of conflict between the parents and protracted litigation, complicated by a significant geographical distance between their residences. A crucial consideration for the court was the child's relationship with his siblings in both households. Despite the volatile co-parenting relationship, the parties sought orders for equal shared parental responsibility by consent.

The primary legal issues before the court were to determine the most appropriate parenting orders for the child, specifically regarding parental responsibility, the child's living arrangements, and the time the child would spend with each parent. The court was also required to establish mechanisms for communication and information sharing between the parents, given their history of conflict, and to implement orders aimed at protecting the child from parental denigration and the discussion of legal proceedings.

Judge Neville made orders discharging all previous parenting orders. The parents were granted equal shared parental responsibility, with specific provisions for information sharing regarding the child's schooling and healthcare. The court ordered that the child live with his Mother and established a schedule for the child to spend time with his Father, including one weekend per month during school terms, specific periods during school holidays, and alternating Christmas holiday arrangements. The orders also included provisions for handover, telephone and electronic communication, and importantly, restraints on each parent from denigrating the other or discussing proceedings within the child's hearing. The Mother was also restrained from allowing the child contact with a Mr C.

Orders

Orders of the court

All previous parenting Orders regarding the child, [X] (born: … 2012) (“the child”), be and are hereby discharged.

Parental responsibility

The parents have equal shared parental responsibility for the child.

By this Order, each parent authorises any school or child care facility that the child attends, to give to the other parent any information regarding the child, including but not limited to school newsletters, school photo order forms, school reports, examples of school work and each parent is at liberty to attend any school function to which parents are normally invited.

By this Order, each parent authorises any doctor, health care provider or health care facility who treats the child, to give to the other parent any information regarding the child.

In order to facilitate Order 4 above, each parent shall advise the other within two days of the child attending any appointment with a health care provider:-

(a) of any appointment attended by the child;

(b) the name of the doctor or health care provider seen by the child;

(d) any recommendation made by the health care provider;

(e) any medication prescribed for the child together with the directions for administration.

In the event of an emergency or hospitalisation, each parent is to notify the other as soon as reasonably practicable via text message.

The parties are to communicate about the child:-

(a) in the event of an emergency or hospitalisation regarding the child, each parent is to notify the other as soon as reasonably practicable via text message;

(b) for general information including medical information, by using the “Talking Parents” mobile application to exchange information regarding [X]; and

Each parent shall keep the other advised of their residential address, email address and mobile telephone number.

Each parent shall advise the other parent of any change to their residential address, email address or telephone number within 24 hours of such change.

Live with

10.

The child shall live with his Mother.

Time with the father

11.

The child shall spend time with his Father during school terms for one weekend per month from 7.00 pm on Friday until 3.00 pm Sunday. Absent any other agreement in writing between the parties, this shall be the first weekend of each month.

12.

The child shall spend time with his Father during term school holidays from 12 noon on the first Saturday in the first weekend of the holidays until 12 noon on the second Saturday in the term holidays.

13.

The time in Order 12 will take place in accordance with the holidays of the school the child is attending.

14.

The child shall spend time with his Father during the Christmas school holidays:-

(a) In 2019 and each alternate year thereafter, from 12 noon on the day that is the midpoint of the school holidays until 12 noon on the Sunday prior to the new school term; and

(b) In 2020 and each alternate year thereafter, from 12 noon on the day after the last day of term until 12 noon on the day that is the midpoint of the school holidays.

15.

For the purposes of Order 14 above:-

(a) The school holidays commence on the day after school finishes;

(b) The school holidays end on the Sunday before school recommences;

(c) In the event there is an odd number of days in the school holidays, the midpoint is the day in the middle of the school holidays;

(d) In the event there is an even number of days in the school holidays, the midpoint handover will take place on the last day of the first half of the school holidays.

16.

The child shall spend with his Father at all other times agreed in writing between the parties.

Handover

17.

For the purposes of handover, absent any other agreement in writing, the parties shall meet at Location A on B Road.

Telephone and electronic communication

18.

The child shall have reasonable telephone communication (and electronic communication if available) with each parent and not less than:-

(a) each Wednesday and Friday between 6.00 pm and 7.00pm;

(b) on the child’s birthday; and

19.

The parent who is not caring for the child shall telephone the child on the other parent’s mobile telephone number.

Restraints and injunctions

20.

Each parent is restrained and injuncted from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or member of their household or extended family, to or within the child’s hearing, or permitting any other person to do so.

21.

Each parent is restrained and injuncted from discussing these proceedings or the contents of any documents used in these proceedings with or within the child’s hearing, or permitting any other person to do so.

22.

The Mother is restrained and injuncted from allowing or bringing the child into contact with Mr C.

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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