SCHRODER & SCHRODER - [2018] FCCA 3463

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHRODER & SCHRODER

[2018] FCCA 3463

Catchwords:
FAMILY LAW – Parenting – where mother seeks to relocate with the children to Town 1 and spend block time with the father in holiday periods – where father opposes relocation and seeks the children live with mother in Melbourne and spend substantial and significant time with him – whether mother's parenting capacity will be diminished if not permitted to relocate – where the parties communication and conflict would not support equal shared parental responsibility – where relocation is not in children’s’ best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61C, 61DA, 65DAA

Cases cited:

Hall & Hall (1979) FLC 90-713
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Zahawi & Rayne [2016] FamCAFC 90

Applicant:

MR SCHRODER

Respondent:

MS SCHRODER

File Number:

DGC 1136 of 2017

Judgment of:

Judge O'Sullivan

Hearing dates:

6 & 7 September, 25 & 26 October 2018

Date of Last Submission:

26 October 2018

Delivered at:

Dandenong

Delivered on:

28 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Kennedy Partners

Counsel for the Respondent:

Mr Scriva

Solicitors for the Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer:

Mr Crozier-Durham

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

THE COURT ORDERS THAT:

All previous parenting orders for [X] born …2013 and [Y] born …2014 (“the children”) be discharged.
The mother have sole parental responsibility for making major long term decisions with respect to the children, including the issues of education and health subject to the requirement to provide the father with:
a.written notice of her views on such issues;
b.consulting with the father and making a genuine effort to come to a joint decision; and
c.if no agreement is reached between the parties within 21 days make a final decision and provide the father with written advice of the decision with respect to such issue.
The children live with the mother.

3A.The mother be restrained from relocating the residence of the children from Melbourne.

The children spend time and communicate with the father as follows:
a.During school term in a two week cycle:
1.    in week one
a)from the conclusion of school/kindergarten on Tuesday or 3.30pm if not a school/kindergarten day until the      commencement school/kindergarten on Wednesday or 9.00 am if Wednesday is not a school/kindergarten day.
b)from the conclusion of school/kindergarten on Friday or 3.30pm if Friday is not a school/kindergarten day until the commencement of school on Monday or 9.00 am if Monday is not a school day.
2.   in week two from the conclusion of school/kindergarten on Tuesday or 3.30 pm if Tuesday is not a school/kindergarten day until the commencement of school/kindergarten on Wednesday or 9.00 am if not a school/kindergarten day.
3.    by Skype on the alternate Saturday at 9.30am.
b.for one half of all gazetted school term holiday periods at times to be agreed and in default of agreement at 6.00 pm…

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 SCHRODER & SCHRODER

Details

AGLC: Schroder and Schroder [2018] FCCA 3463
Case: [2018] FCCA 3463
Decision Date: 28 November 2018

CaseChat Overview and Summary

In the matter of *Schroder & Schroder*, the mother sought to relocate with the children to Town 1 and spend block time with the father during holiday periods, while the father opposed the relocation and sought the children to live with the mother in Melbourne and spend substantial and significant time with him. The court was asked to consider whether the mother's parenting capacity would be diminished if she were not permitted to relocate and whether the parties' communication and conflict would support equal shared parental responsibility.

The court was required to determine the children's best interests in light of the proposed relocation and the existing parental conflict. Specifically, the court had to assess whether the mother's proposed relocation was in the children's best interests, considering the impact on their relationship with the father and the overall family dynamic. The court also needed to consider the level of shared parental responsibility that was appropriate given the parties' communication difficulties.

Judge O'Sullivan found that the parties' communication and conflict would not support equal shared parental responsibility. The court determined that the relocation was not in the children's best interests. Consequently, the court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for making major long-term decisions regarding the children's education and health, subject to a requirement to consult with the father and make a genuine effort to reach a joint decision, with the mother having the final decision if no agreement was reached. The children were ordered to live with the mother, and she was restrained from relocating their residence from Melbourne. The court also made detailed orders regarding the children's time and communication with the father, including during school terms, holidays, and specific cultural and family days, as well as provisions for changeovers, communication, notification of illness, and access to school and medical information. Both parties were restrained from denigrating each other and were ordered to undertake a post-separation parenting course.

Orders

Orders of the court

THE COURT ORDERS THAT:

All previous parenting orders for [X] born …2013 and [Y] born …2014 (“the children”) be discharged.

The mother have sole parental responsibility for making major long term decisions with respect to the children, including the issues of education and health subject to the requirement to provide the father with:

a. written notice of her views on such issues;

b. consulting with the father and making a genuine effort to come to a joint decision; and

c. if no agreement is reached between the parties within 21 days make a final decision and provide the father with written advice of the decision with respect to such issue.

The children live with the mother.

3A. The mother be restrained from relocating the residence of the children from Melbourne.

The children spend time and communicate with the father as follows:

a. During school term in a two week cycle:

1. in week one

a) from the conclusion of school/kindergarten on Tuesday or 3.30pm if not a school/kindergarten day until the commencement school/kindergarten on Wednesday or 9.00 am if Wednesday is not a school/kindergarten day.

b) from the conclusion of school/kindergarten on Friday or 3.30pm if Friday is not a school/kindergarten day until the commencement of school on Monday or 9.00 am if Monday is not a school day.

2. in week two from the conclusion of school/kindergarten on Tuesday or 3.30 pm if Tuesday is not a school/kindergarten day until the commencement of school/kindergarten on Wednesday or 9.00 am if not a school/kindergarten day.

3. by Skype on the alternate Saturday at 9.30am.

b. for one half of all gazetted school term holiday periods at times to be agreed and in default of agreement at 6.00 pm on the last day of school term and concluding at 6.00 pm on the second Saturday of such term holiday period.

c. for one half of the long school holidays as follows:

1. in 2018-19:

(a) from the conclusion of kindergarten on the last day of term until 4.00pm on 5 January 2019; and

(b) from 4.00pm on 20 January 2019 until the commencement of kindergarten or school on 29 January 2019;

2. in 2019-20 and thereafter for one block period

d. on Eid Al-Fitr and Eid Al-Adha for a minimum of twenty-four hours at times to be agreed.

e. if Father’s Day falls on a weekend when the children are not otherwise to spend time with the father from 5.00 pm on Father’s Day eve until the commencement of school on Monday, provided that time on Mother’s Day be suspended from 5.00 pm on the Mother’s Day Eve.

f. as may otherwise be agreed between the parties in writing.

Changeovers take place at school/kindergarten and if changeovers are to take place when the school or kindergarten is closed that the father collect the children from the residence of the mother at the commencement of their time with him and that the mother collect the children from the residence of the father at the conclusion of that time.

Each party be at liberty to telephone the children or to communicate with them by Skype or other electronic means at least twice per week when they are with the other party during holiday periods.

Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other parent to communicate with such professional if necessary.

Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioners, dentists, counsellors and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

Each of the parties provide the other with their contact address and telephone numbers and inform the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.

10.

Both parties be at liberty to liaise directly with the school/kindergarten attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

11.

Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

12.

Each of the parties by themselves, their servants and/or agents be restrained from :

a. denigrating, abusing, insulting or belittling the other party or his/her extended family to or in the presence and/or hearing of the children;

b. discussing these proceedings with or in the presence and/or hearing of the children; or

c. permitting another person to do so.

13.

Without admitting the necessity each party be restrained from physically disciplining the children.

14.

The father and the mother each undertake a post separation parenting course nominated by the Regional Coordinator of Child Dispute Services of the Dandenong Registry of the Court and at the conclusion of the course provide a copy of the certificate of completion to the other party’s solicitor.

15.

The mother seek a referral from her general medical practitioner to a psychologist or other like professional for emotional support counselling and follow all reasonable directions of such practitioners.

16.

Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

17.

Certify pursuant to rule 21.15 of the Federal Circuit Rules that this matter reasonably required the employment of advocates.

18.

All extant applications be otherwise dismissed.

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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