SHIPLEY & FELDMAN - [2019] FCCA 2143

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIPLEY & FELDMAN

[2019] FCCA 2143

Catchwords:
FAMILY LAW – Parenting – change of residence sought by the father – children aged 12 and 11 – mother primary carer of the children – where there has been final orders made in 2012 and 2017 – where the mother stopped time between the father and the children in November 2016 and November 2017 – where the mother has been found to have contravened orders without a reasonable excuse – where there has been breaches of an intervention order by the father – where the father sent one of the children a picture via text message that the mother alleges distressed the child – where the mother took the child to the police station to make a statement against the father – finding that the mother does not want or is not capable of fostering a relationship between the children and the father – risk of psychological harm to the children by the mother – change of residency ordered.

Legislation:

Family Law Act 1975 (Cth), ss.4, 11F, 60CA, 60CC, 61DA, 65DAA

Cases cited:

R v R (2000) 155 FLR 29

Applicant:

MR SHIPLEY

Respondent:

MS FELDMAN

File Number:

MLC 11371 of 2011

Judgment of:

Judge Blake

Hearing dates:

29, 30 and 31 May 2019

Date of Last Submission:

31 May 2019

Delivered at:

Melbourne

Delivered on:

6 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Southey

Solicitors for the Applicant:

Wilkinson Romer & Associates Pty Ltd

Counsel for the Respondent:

In person

Solicitors for the Respondent:

None

Counsel for the Independent Children's Lawyer:

Mr Nicholson

Solicitors for the Independent Children's Lawyer:

Sofra Solicitors

ORDERS

All extant parenting orders be discharged.
The mother and father have equal shared parental responsibility for the children:
(a)[X] born … 2006 (‘[X]’); and
(b)[Y] born … 2007 (‘[Y]’).
[X] and [Y] (‘the children’) live with the father.
The father collect [X] and [Y] from the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne immediately following the conclusion of the delivery of judgment.
The mother, and anyone accompanying her, shall leave the Court premises forthwith.
From today until the commencement of the 2019 school term 3 holidays as provided for in order 9(c)(i) hereof, the Mother not spend time or communicate with the children (‘suspension period’).
During the suspension period, the mother be restrained by way of injunction from attending:
(a)at the children’s school or any other school at which the children attend; and/or
(b)any school events for the children which parents would ordinarily attend.
During the suspension period, the mother be restrained by way of injunction from personally attending at any extra-curricular events in which the children or either of them are engaged.
Thereafter, the children spend time with the mother as follows:
(a)each alternate weekend from 6pm Friday to 3pm Sunday;
(b)up to one further weekend per calendar month from after school Friday to 3pm…

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.

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Details

Case: [2019] FCCA 2143
Decision Date: 6 August 2019

CaseChat Overview and Summary

In the matter of Shipley & Feldman, Judge Blake of the Family Court of Australia considered an application by the father for a change of residence for the parties' two children, aged 12 and 11. The mother had been the primary carer, and final parenting orders had been made in 2012 and 2017. The dispute involved allegations of the mother stopping time between the father and children in late 2016 and 2017, for which she had been found to have contravened orders without reasonable excuse. The father had also breached an intervention order, and a text message sent by him to one child had allegedly distressed the child, leading the mother to take the child to the police.

The court was required to determine whether to order a change of residence for the children to live with the father. This involved assessing the existing parenting orders, the history of contraventions by both parties, and the impact of these issues on the children's welfare. A key consideration was whether the mother was unwilling or unable to foster a relationship between the children and their father, and whether there was a risk of psychological harm to the children arising from the mother's conduct.

Judge Blake found that the mother's actions demonstrated an unwillingness or inability to foster the children's relationship with their father, and that her conduct posed a risk of psychological harm to the children. Applying the principles of the *Family Law Act 1975* concerning the best interests of the child, the court concluded that a change of residence was warranted. The court ordered that all extant parenting orders be discharged and that the parents have equal shared parental responsibility. The children were ordered to live with the father, and the mother's time with the children was significantly restricted for an initial period, with injunctions preventing her from attending school or extra-curricular events. Detailed provisions were made for future time spent with the mother, communication, and parental responsibilities.

Orders

Orders of the court

All extant parenting orders be discharged.

The mother and father have equal shared parental responsibility for the children:

(a) [X] born … 2006 (‘[X]’); and

(b) [Y] born … 2007 (‘[Y]’).

[X] and [Y] (‘the children’) live with the father.

The father collect [X] and [Y] from the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne immediately following the conclusion of the delivery of judgment.

The mother, and anyone accompanying her, shall leave the Court premises forthwith.

From today until the commencement of the 2019 school term 3 holidays as provided for in order 9(c)(i) hereof, the Mother not spend time or communicate with the children (‘suspension period’).

During the suspension period, the mother be restrained by way of injunction from attending:

(a) at the children’s school or any other school at which the children attend; and/or

(b) any school events for the children which parents would ordinarily attend.

During the suspension period, the mother be restrained by way of injunction from personally attending at any extra-curricular events in which the children or either of them are engaged.

Thereafter, the children spend time with the mother as follows:

(a) each alternate weekend from 6pm Friday to 3pm Sunday;

(b) up to one further weekend per calendar month from after school Friday to 3pm Sunday with such time to be spent in the Town H area, with the mother to provide the father with seven (7) days’ notice of her intention to spend such time with the children;

(i) in the year 2019 and each alternate year thereafter, commencing at 6:30pm on the last day of term and concluding at 3pm on the middle Saturday of the holidays;

(ii) in the year 2020 and each alternate year thereafter, commencing at 6:30pm on the middle Saturday and concluding at 3pm on the last Saturday of the holidays;

(d) for half of the Christmas school holidays in each year as agreed, and in default of agreement such time as follows:

(i) in the year 2019/2020 and each alternate year thereafter, commencing at 6:30pm on the last day of term and concluding at 3pm on the midway point of the holidays;

(ii) in the year 2020/2021 and each alternate year thereafter, commencing at 6:30pm on the midway point of the holidays and concluding at 3pm on the last Saturday of the holidays;

(e) for Christmas by agreement, and failing agreement:

(i) From 5pm on Christmas Eve until 5pm on Christmas Day in 2019 and each alternate year thereafter;

(ii) From 5pm on Christmas Day until 5pm on Boxing Day in 2020 and each alternate year thereafter.

(f) on the Mother’s Day weekend in each year from 6:30pm Friday to 3pm Sunday; and

(g) as otherwise agreed between the parties.

10.

In the event that the mother’s time spent with the children pursuant to order 9(a) hereof coincides with a long weekend for the children arising from a public holiday or non-school day then the mother’s time spent with the children shall be extended to include each additional day, and in the event that the additional day’s holiday is as follows:

(a) a Friday, then such time shall commence at 6:30pm on the relevant Thursday; and

(b) a Monday, then such time conclude at 3pm on the Monday.

11.

The mother and the father may communicate with the children by telephone or FaceTime as follows:

(a) each Tuesday and Thursday between 5pm and 5:30pm with the parent with whom the children are not then living, to instigate such calls;

(b) each alternate Saturday between 5pm and 5:30pm, with the parent with whom the children are not then living, to instigate such calls; and

(c) at all reasonable times when the children or any of them wish to call the other parent, with the children to instigate such calls;

and each parent with whom the children are living must ensure that all telephone or FaceTime calls are facilitated, that the children’s mobile telephone is charged and available to the children, and that the children are given privacy during such calls.

12.

The time the mother spends with the children pursuant to orders 9(a) and 9(b) hereof shall be suspended as follows:

(a) from 5pm on Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter;

(b) from 5pm on Christmas Eve until 5pm on Christmas Day and each alternate year thereafter;

(d) for the duration of each of the school term and Christmas school holiday periods.

13.

Unless otherwise agreed in writing, changeovers shall take place at McDonalds Restaurant, Town G.

14.

The father be at liberty to enrol the children in a school in the Town H area.

15.

The father shall:

(a) keep the mother advised at all times of the current residential address and telephone number of the children;

(b) advise the mother immediately in the event that the children, or either of them suffers any serious illness or injury;

(c) authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the mother in respect to the children’s medical condition and/or requirements.

(d) authorise all schools at which the children may attend, from time to time, to:

(i) provide the mother, at the expense of the mother, copies of all school reports, school notices and school photographs in relation to the children;

(ii) communicate with the mother, either by telephone, in writing or by personal attendance, in respect of the children’s progress at their respective schools;

(iii) attend all school functions to which parents are normally invited;

subject to any school policy in relation thereto; and

(e) advise the mother of any proposed interstate holiday travel with the children and provide a contact number where the children can be reached in the event of emergency.

16.

The mother shall:

(a) keep the father advised at all times of her current residential address and telephone number;

(b) advise the father immediately in the event that the children or either of them suffers serious illness or injury;

(c) authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the father in respect to the children’s medical condition and/or requirements; and

(d) advise the father of any proposed interstate holiday travel with the children and provide a contact number where the children can be reached in the event of emergency.

17.

The parties, their servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their household in the presence or hearing of the children or either of them or from permitting any other person so to do;

(b) discussing these proceedings, any allegations made in these proceedings or any adult issues or disputes with the children or anywhere where the children may overhear them doing so;

(d) telephoning the other save for an emergency concerning the children, or either of them, and all other communication about the children shall occur by e-mail or SMS text message; and

(e) without either party admitting the need for the same, using physical discipline on the children or either of them.

18.

The mother, the father and the Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:

(a) the Principal or delegate of the Principal of the school attended from time to time by the children; and

(b) any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the mother, the father or any other child of either parent.

19.

The order of the Court appointing the Independent Child Lawyer be discharged after a period of 4 weeks from the delivery of this judgment.

20.

The Independent Children’s Lawyer meet with the children and explain to them the nature and effect of these orders immediately following the delivery of this judgment.

21.

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 are set out in Attachment A and these particulars are included in these orders.

NOTATION:

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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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