Scotts and Senior - [2016] FCCA 2044

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTTS & SENIOR

[2016] FCCA 2044

Catchwords:
FAMILY LAW – Parenting – young children – assessed as no risk to the children remaining in the Mother’s care – manipulative conduct by the Father trying to “bait” the Mother to expose her alleged poor parenting – significant lack of insight by the Father of his conduct and lack of commitment to relationships with his various partners and the likely negative impact on the children involved.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2) & (3)(a) – (l), 61DA, 65DAA

McCall v Clark (2009) 41 Fam LR 483

Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MS SCOTTS

Respondent:

MR SENIOR

File Number:

CAC 237 of 2015

Judgment of:

Judge Neville

Hearing date:

1 February 2016

Date of Last Submission:

8 April 2016

Delivered at:

Canberra

Delivered on:

11 August 2016

REPRESENTATION

Solicitor/Advocate for the Applicant:

Ms M Burgess

Solicitors for the Applicant:

Legal Aid ACT

Counsel for the Respondent:

Self-represented

Solicitor/Advocate for the Mrs G Yeend
Independent Children’s Lawyer:

Solicitors for the Independent Yeend & Associates
Children’s Lawyer:

ORDERS

The Mother is to have sole parental responsibility for the children, X (born: (omitted) 2011) and Y (born: (omitted) 2013).
The children live with the Mother.
The children spend time with the Father as agreed in writing but failing agreement, as follows:
(a)During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the first week of term in 2016 and in even numbered years thereafter;
(b)During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the second week of term in 2017 and in odd numbered years thereafter;
(c)For the first half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2016 and in each even numbered year; and
(d)For the second half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2017 and in each odd numbered year thereafter;
(e)In weeks 1, 2 and 5 of the Term 4 school holiday period, commencing in 2017 and in every odd numbered year thereafter; and
(f)In weeks 3, 4 and 6 of the Term 4 school holiday period, commencing in 2016 and in every even numbered year thereafter.
For the purposes of Order 3 herein, the school holiday period will commence at 10:00am on the Saturday after the last day of school and conclude at 4:00pm on the Saturday before school recommences.
For the purposes of Order 3 herein, one half of the school holiday period is to be calculated by dividing the total number of days the children do not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in…

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 Scotts and Senior

Details

AGLC: Scotts and Senior [2016] FCCA 2044
Case: [2016] FCCA 2044
Decision Date: 11 August 2016

CaseChat Overview and Summary

The case of *Scotts and Senior* concerned parenting orders made by Judge Neville in the Federal Circuit Court of Australia. The dispute involved the mother and father of two children, X and Y, regarding the arrangements for their care and time spent with each parent.

The court was required to determine the specific terms of parenting orders, including who would have parental responsibility for the children, where they would live, and the schedule for their time spent with each parent. This encompassed detailed provisions for regular time during school terms, school holidays, and special occasions, as well as arrangements for communication, changeovers, and overseas travel. The court also addressed the parents' conduct towards each other in the presence of the children.

Judge Neville made orders granting the mother sole parental responsibility for the children, with the children to live with her. The father was granted time with the children on alternate weekends during school terms, with specific provisions for school holidays and special occasions, including Halloween, Christmas, Easter, Mother's Day, and Father's Day, with alternating arrangements for odd and even-numbered years. The orders also stipulated communication protocols, including notification of significant events and medical information, and authorised childcare and school providers to share information with both parents. Furthermore, the court made provisions for overseas travel, requiring written notice, itinerary details, and consent, and restrained both parents from speaking negatively about the other to the children.

Orders

Orders of the court

The Mother is to have sole parental responsibility for the children, X (born: (omitted) 2011) and Y (born: (omitted) 2013).

The children live with the Mother.

The children spend time with the Father as agreed in writing but failing agreement, as follows:

(a) During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the first week of term in 2016 and in even numbered years thereafter;

(b) During the New South Wales school term on each alternate week from 4:00pm Friday until 4:00pm Sunday, commencing on the second week of term in 2017 and in odd numbered years thereafter;

(c) For the first half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2016 and in each even numbered year; and

(d) For the second half of the New South Wales school holiday periods in Terms 1, 2, 3 in 2017 and in each odd numbered year thereafter;

(e) In weeks 1, 2 and 5 of the Term 4 school holiday period, commencing in 2017 and in every odd numbered year thereafter; and

(f) In weeks 3, 4 and 6 of the Term 4 school holiday period, commencing in 2016 and in every even numbered year thereafter.

For the purposes of Order 3 herein, the school holiday period will commence at 10:00am on the Saturday after the last day of school and conclude at 4:00pm on the Saturday before school recommences.

For the purposes of Order 3 herein, one half of the school holiday period is to be calculated by dividing the total number of days the children do not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.

For the purposes of Order 3 herein, during the Term 4 school holiday period, each week commences at 10:00am Saturday and conclude at 4:00pm the· following Saturday.

Special Occasions

Notwithstanding any other Order herein, the children spend time with their parents as follows:

(a) From 5:00pm the day before Halloween until 5:00pm the day after Halloween with the Mother;

(b) From 5:00pm on Christmas Eve to 5:00pm on Boxing Day with the Father in odd numbered years, commencing in 2017;

(d) From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father, in even numbered years commencing 2016;

(e) From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in even numbered years, commencing in 2016;

(f) From 5:00pm on the Thursday before Good Friday to 5:00pm on Easter Saturday with the Father in odd numbered years, commencing 2017;

(g) From 5:00pm Easter Saturday to 5:00pm Easter Monday with the Mother in odd numbered years, commencing in 2017.

(h) From 5:00pm the day before Mother's day until 5:00pm the day after Mother's day with the Mother;

(i) From 5:00pm the day before Father's day to 5:00pm the day after with the Father.

Changeover

Changeover shall occur as agreed between the parties in writing but failing agreement, outside the McDonald's (omitted) in New South Wales.

Communication

The resident parent will take all reasonable steps to facilitate communication between the children and the non-resident parent through telephone or Skype.

10.

Within 7 days each parent shall provide the other with written details of their residential address and that each parent shall notify the other within 24 hours of any change of residential address, email or telephone number, including mobile telephone.

11.

The Mother shall advise the Father, as soon as reasonably practical of:

(a) Any significant illness, accidents or injury suffered by the children;

(b) Any significant medical or dental treatment provided to the children;

(d) This Order may be regarded as authority for the relevant Doctor or Hospital to provide relevant information to Father.

12.

The Father notify the Mother immediately, or as soon as practicable, of any medical or other emergency relating to the children, while they are in his care.

13.

The children's childcare, school, vacation care and other providers are authorised to provide all information and documents about the children to both parents, including but not limited to the children's progress, newsletters, reports, photographs and details of any school activities and that each parent shall ensure they provide their contact details to such school and facilities.

14.

Both parents may attend any school, extracurricular or sporting activity to which parents are normally invited.

Overseas Travel

15.

The parties do all things necessary, including but not limited to producing and signing of documents, to enable the children to obtain passports, at the Mother's cost.

16.

The children are permitted to travel outside the Commonwealth of Australia, subject to:

(a) The parent proposing travel providing the other parent with 8 weeks' notice in writing of the proposed travel, including details of the proposed itinerary and details of makeup time following the period of travel for any party who forgoes time as a result of the travel;

(b) Not less than 14 days prior to departure, the parent proposing travel providing a copy of the children's tickets and confirmation of the addresses where they will be staying during the period of travel together with an email address and telephone number at which the parent and the children may be contacted by the other parent;

(d) The consent in writing of the other parent is not unreasonably withheld; and

(e) That during the period the children are overseas, the parent with whom the children are travelling will facilitate the children telephoning the other parent on alternate days.

17.

Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence, or allowing any other person to do so.

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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