Shirley and Moore - [2018] FamCA 988

FAMILY COURT OF AUSTRALIA

SHIRLEY & MOORE

[2018] FamCA 988

FAMILY LAW – CHILDREN – Parenting – with whom a child lives – change of residence to the father – where the father is granted sole parental responsibility – moratorium on time.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT:

Mr Shirley

RESPONDENT:

Ms Moore

INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

FILE NUMBER:

PAC

3139

2013

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

15, 16, 17, 18, 19 and 23 February 2016; 21 November 2016;
12, 13 and 14 November 2018

REPRESENTATION

APPLICANT:

In person on his own behalf

RESPONDENT:

In person on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harding

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

Orders

(Amended on 27 November 2018 pursuant to rule 17.02 of the Family Law Rules 2004)

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The child, B, born … 2013, live with the father immediately from the making of this Order.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in relation to the child but exclusive of the issue of the child’s name, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
In considering a decision about major long term issues in relation to the child:
(a)the father will advise the mother in writing of his proposal relating to the child and the reason for such proposal;
(b)the mother will within fourteen (14) days of receipt of written communication respond with her views to the father;
(c) the father shall give consideration to the mother’s views;
(d)after the father has considered the mother views, the father shall make a decision and advise the mother in writing of the outcome as soon as practicable after making the decision with his reasons for the decision;
(e)in the event that the mother does not respond in writing within fourteen (14) days as provided within Order (4)(b), the father shall send a further written communication to the mother and wait a further two days for a response;
(f)if no response is received from the mother in the time period provided for in order 4(e), the father shall be entitled to presume that the mother does not wish to be involved and may decide the issue without further input from the mother.
The father is restrained and an injunction is issued restraining him from changing the child’s surname or using any surname other than “Moore” to refer to the child or permitting any other person, institution or authority from referring to the child by a surname other than “Moore”.
Each party has responsibility…

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 Shirley and Moore

Details

AGLC: Shirley and Moore [2018] FamCA 988
Case: [2018] FamCA 988
Decision Date: 23 November 2018

CaseChat Overview and Summary

This matter concerned parenting orders made by Hogan J in the Federal Circuit Court of Australia. The dispute involved the father, Mr Shirley, and the mother, Ms Moore, regarding the future care and upbringing of their child, B.

The court was required to determine a range of issues concerning the child's living arrangements, parental responsibility, and communication between the parents. Specifically, the court had to decide where the child would live, who would have parental responsibility for major long-term decisions, and the nature and extent of the child's time and communication with each parent. The court also had to address the child's surname and the parents' conduct towards each other and in the presence of the child.

Hogan J made final orders that discharged all previous parenting orders. The child was ordered to live with the father, who was granted sole parental responsibility for all major long-term issues concerning the child, excluding the child's name. The father was required to consult with the mother on these issues, with specific procedures outlined for communication and decision-making. The father was restrained from changing the child's surname from "Moore." The mother was significantly restricted in her time and communication with the child, with supervised contact to commence after a specified date, and with shared costs for such supervision. Both parents were ordered to refrain from denigrating each other and to facilitate communication and information sharing regarding the child's welfare, education, and health. The mother was also restrained from attending at the child's school for a specified period.

Orders

Orders of the court

(Amended on 27 November 2018 pursuant to rule 17.02 of the Family Law Rules 2004)

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.

The child, B, born … 2013, live with the father immediately from the making of this Order.

The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in relation to the child but exclusive of the issue of the child’s name, with such issues to include but not be limited to:

(a) the child’s education;

(b) the child’s religious and cultural upbringing; and

In considering a decision about major long term issues in relation to the child:

(a) the father will advise the mother in writing of his proposal relating to the child and the reason for such proposal;

(b) the mother will within fourteen (14) days of receipt of written communication respond with her views to the father;

(d) after the father has considered the mother views, the father shall make a decision and advise the mother in writing of the outcome as soon as practicable after making the decision with his reasons for the decision;

(e) in the event that the mother does not respond in writing within fourteen (14) days as provided within Order (4)(b), the father shall send a further written communication to the mother and wait a further two days for a response;

(f) if no response is received from the mother in the time period provided for in order 4(e), the father shall be entitled to presume that the mother does not wish to be involved and may decide the issue without further input from the mother.

The father is restrained and an injunction is issued restraining him from changing the child’s surname or using any surname other than “Moore” to refer to the child or permitting any other person, institution or authority from referring to the child by a surname other than “Moore”.

Each party has responsibility for daily decisions about the day to day care, welfare and development of the child while the child is in his or her care.

Unless otherwise agreed between the parents in writing, the child shall spend no time and have no communication with the mother until after 12 April 2019.

Thereafter, the child shall spend time with the mother at all times as may be agreed in writing between the parties and, failing agreement, as follows:

(a) each third weekend for a period of three (3) hours on Saturday and three (3) hours on Sunday, with such time to be supervised at times that can be facilitated by C Org and at venues nominated by C Org, with staff from C Org to supervise the time; and

(b) the mother and father shall equally share in the cost of supervised time charged by C Org to facilitate time provided in order 8(b).

After 12 April 2019, the parents will facilitate the child communicating with the other parent by telephone or Skype communication while he is in their care on each Wednesday between 5.00 pm and 5.30 pm, with the parent who does not have the child in their care to initiate the telephone call or Skype call to the other parent and the other parent to facilitate the child participating in such communication.

10.

Both parents are to refrain from denigrating the other parent to or in the presence or hearing of the child and in the event that a third party is denigrating the other parent to or in the presence of the child, they will remove the child from the situation.

11.

Both parents will keep each other informed and advise each other of any change within seven (7) days of the change occurring of the following:

(a) their residential address;

(b) their contact telephone numbers; and

12.

The parents are to notify each other in writing of any medical details that are necessary to enable the other parent to continue with any medical treatment prescribed or recommended by a medical practitioner for the child whilst in their care.

13.

The parents will provide each other with the names, contact details and date of visit for any medical centres, doctors and allied health professionals that the child attends upon whilst in their care.

14.

In the event of a medical emergency for the child, the parent whose care he is in at the time will as soon as practicable contact the other parent by telephone, email and SMS to advise them of the following:

(a) the name and address of the facility where the child is receiving medical treatment;

(b) the nature of the medical emergency.

15.

The parents will provide each other with the name and contact details for any educational institution including day care provider that the child attends.

16.

Both parent authorise and this Order serves as such authority to any school educational institution, day care, medical professional, allied health professional, extra-curricular provider attended upon by the child to provide such information about the child as may be requested by either parents, at the cost of the parent requesting such information.

17.

Both parents will provide the other parent’s name and contact details to any school educational institution, day care, medical professional, allied health professional extra-curricular provided that the child attends.

18.

Both parents agree that they will not record nor direct any third party to record by video or audio recording any interaction between themselves.

19.

Both parents agree that they will not attend upon each other’s residential address and not direct any third party to attend upon each other’s residential address without the written consent of the other parent.

20.

Both parents are to refrain from physically disciplining the child.

21.

In the event that any treating psychologist and/or general medical practitioner engaged by the mother requests of the Independent Children’s Lawyer, then the Independent Children’s Lawyer has leave to provide such practitioner with a copy of the following documents:

(a) the transcript of the evidence of Dr O on 19 February 2016;

(b) a copy of these final orders and Reasons for Judgment;

22.

The father ensure that the child attends upon a child psychologist as frequently as recommended by the child psychologist to assist the child in transitioning into his father’s full time care.

23.

The mother be restrained from attending at the child’s school and making contact or communicating with the child’s school for Term 1 and 2, 2019 which concludes on 5 July 2019.

24.

The father provide written notice of the child’s school for Term 1, 2019 to the mother by 19 December 2018.

AND IT IS FURTHER ORDERED THAT

25.

The mother is restrained and an injunction hereby issues restraining her from removing the child from Child Dispute Services.

26.

The mother leave the Court precinct immediately upon the rising of the Court.

27.

By this Order, Child Dispute Services, Level 3 Harry Gibbs Commonwealth Law Courts Brisbane, is authorised to deliver the child, B, born … 2013, into the care of his father, Mr Shirley.

28.

Mr P, Family Consultant, shall be provided with a copy of this Order and the Reasons for Judgment delivered today for the purpose of assisting him to explain the Orders made today and the effect of the same to the child.

29.

Mr P, Family Consultant, shall assist the parties in relation to compliance with, and the carrying out of, the Orders made on 23 November 2018 by:

(a) explaining the terms of that Order to the child; and

(b) explaining the Reasons for Judgment delivered in support of those Orders to the extent that this is possible, and in terms that are appropriate, given the age of the child.

30.

The Independent Children’s Lawyer is discharged.

31.

All outstanding applications are otherwise dismissed and the matter is removed from the list of cases awaiting determination.

32.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

(A) This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Clause 21.a to record the correct date.

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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