FAMILY COURT OF AUSTRALIA
| SCARLE & RINGWOOD AND ANOR | [2017] FamCAFC 57 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children live with the grandmother and spend limited time with the mother – Where the trial judge’s reasons for so ordering were inadequate – Appeal allowed – Remitted for rehearing – Orders under appeal remade pending further order – Costs certificates granted. |
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
| Bennett & Bennett (1991) FLC 92-191 Bolitho & Cohen (2005) FLC 93-224 CDJ v VAJ (1998) 197 CLR 172 Goode & Goode (2006) FLC 93-286 House v The King (1936) 55 CLR 499 M v M (1988) 166 CLR 69 Rollings v Rollings (2009) 230 FLR 369 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 U v U (2002) 211 CLR 238 Yates & Yates (Independent Children’s Lawyer-Costs) [2012] FamCAFC 219 |
| APPELLANT: | Ms Scarle |
| FIRST RESPONDENT: | Ms Ringwood |
SECOND RESPONDENT: | Mr Arrow |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5 | of | 2013 |
| APPEAL NUMBER: | EA | 109 | of | 2016 |
| DATE DELIVERED: | 31 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Thackray and Ryan JJ |
| HEARING DATE: | 7 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1428 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Andrew Givney |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | J D Grew |
| SOLICITOR FOR THE FIRST RESPONDENT: | Blackman Legal |
THE SECOND RESPONDENT: No appearance
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stephen Rugendyke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Insofar as it seeks leave to rely on a summary of argument longer than ten (10) pages and to file an amended notice of appeal dated 25 October 2016, the appellant mother’s application in an appeal filed 8 November 2016 be allowed.
The appeal be allowed.
The cross-appeal be allowed.
Paragraphs 1–14 inclusive and paragraph 16 of the Orders made by Judge Brewster on 27 June 2016 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
The Court grants to the respondent grandmother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent grandmother in respect of the costs incurred by her in relation to…
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- Case
- [2017] FamCAFC 57
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to decide included the interpretation of the Federal Circuit Court’s orders concerning shared parental responsibility, the adequacy of the arrangements for the children's contact with their mother, and the appropriateness of the restrictions imposed on both parties regarding their interactions with the children. Specifically, the court had to consider whether the orders made by the Federal Circuit Court adequately reflected the principle of equal shared parental responsibility, and whether the contact arrangements and restrictions were in the best interests of the children.
The court found that the Federal Circuit Court had not adequately considered the principle of equal shared parental responsibility in its orders. The court noted that the orders did not sufficiently reflect the shared nature of parental responsibility and that the arrangements for the children's contact with their mother were not optimal. The court also considered that some of the restrictions imposed on the parties were not necessary or appropriate. Consequently, the court allowed the appeal and the cross-appeal, set aside certain paragraphs of the Federal Circuit Court’s orders, and remitted the matter for rehearing. The court emphasised that the children should have equal shared parental responsibility and specified detailed arrangements for contact and communication between the children and their mother.
In conclusion, the court allowed the appeal and cross-appeal, setting aside certain orders and remitting the matter to the Federal Circuit Court for rehearing. The court granted costs certificates to both parties, indicating that it would be appropriate for the Attorney-General to authorise payments for the incurred costs. The court also outlined specific orders regarding the shared parental responsibility and contact arrangements for the children, aiming to ensure that the children's best interests are met in accordance with the principle of equal shared parental responsibility.
Orders
Orders of the court
1.
Insofar as it seeks leave to rely on a summary of argument longer than ten (10) pages and to file an amended notice of appeal dated 25 October 2016, the appellant mother’s application in an appeal filed 8 November 2016 be allowed.
2.
The appeal be allowed.
3.
The cross-appeal be allowed.
4.
Paragraphs 1–14 inclusive and paragraph 16 of the Orders made by Judge Brewster on 27 June 2016 be set aside.
5.
The matter be remitted to the Federal Circuit Court of Australia for rehearing.
6.
There be no order as to costs.
7.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
8.
The Court grants to the respondent grandmother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent grandmother in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
9.
The Court grants to the appellant mother and the respondent grandmother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother and the respondent grandmother in respect of the costs incurred by them in relation to the rehearing of the application.
PENDING FURTHER ORDER
10.
That the maternal grandmother, Ms Ringwood (“the grandmother”) and the mother, Ms Scarle (“the mother”) have equal shared parental responsibility in relation to the children, M born in 2008 and H born in 2010.
11.
That the children live with the grandmother.
12.
That the children have time with the mother as follows:
a. On the second weekend and sixth weekend of each school term. Having regard to rail timetables if travel is to be by rail, this time is to be as near as possible from 10.00am Saturday to 4.00pm Sunday or Monday if a long weekend. If Easter falls outside school holidays and falls on a time weekend time is to commence on Good Friday and conclude on Easter Monday. If the mother wishes she may substitute the weekend of Mother’s Day for the second weekend. The notice period in Order (11)(b) shall apply.
b. On other weekends at times nominated by the mother provided that the time is exercised in the Town K area. She is to notify the grandmother in writing during the preceding school holidays the weekend or weekends she proposes during the next term. The weekends she nominates must not result in a situation where on average they have time more frequently than one weekend in two over the term. She may nominate the times and days of collection and return.
c. For one half of school holidays being the first half of holidays falling or commencing in even numbered years and the second half of holidays falling or commencing in odd numbered years.
13.
That the mother may have telephone contact with the children by telephoning them each Wednesday between 6.00pm and 6.30pm. The grandmother is to ensure that the children are available to take the call. If Skype facilities are available then this may be by Skype. She may also telephone the children at the same times on each of their birthdays.
14.
That notwithstanding the above orders the mother may opt to replace one of the weekends referred to in Order 11(a) with time on the June long weekend.
15.
That the places of handovers are to be agreed between the parties. In default of agreement if travel is to be by rail it is to be at Central Station in Sydney or if by car at the Suburb P railway station or, if time is to be in Town K, at the Town K railway station.
16.
That half of school holidays is to be calculated by dividing the total number of days the children do not attend school by two. If this is an uneven number of days the mother is to have the extra day in holidays falling or commencing in even numbered years and not in other holidays.
17.
That where time is in the first half of school holidays it shall, subject to railway timetables if travel is to be by rail, commence as near as possible to 10.00am on the day after school breaks up and conclude as near as possible to 4.00pm on the last day. If it is in the second half of the holidays it will conclude one clear day before the children return to school. This is not intended to reduce the mother’s time with the children.
18.
That the grandmother is to keep the mother informed of the names of any health professionals involved with the children and to authorise those people to provide any information to the mother that she may request. Nothing in this order purports to require those people to cooperate in this respect.
19.
That each party shall advise the other promptly of any significant medical issue affecting the children arising whilst the children are in that party’s care.
20.
That the grandmother is to authorise any school that the children attends to provide the mother with copies of school reports and school photographs. Nothing in this order purports to require the school to cooperate in this respect.
21.
That the grandmother is restrained from bringing the children into contact with, or communicating with, Mr Z.
22.
That the mother be and is hereby restrained from:
a. Questioning the children regarding these proceedings or any allegations made in these proceedings; and
b. Questioning the children regarding any allegations made in respect of proceedings before the District Court; and
c. Without admissions, using or being under the influence of an illegal drug or from consuming or drinking alcohol over and above the legal limit for driving whilst the children are in her care.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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