Simpson and Caldridge - [2009] FamCA 494

FAMILY COURT OF AUSTRALIA

SIMPSON & CALDRIDGE

[2009] FamCA 494

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Substantial and significant time
FAMILY LAW – CHILDREN – Relocation

Family Law Act 1975 (Cth)

A&A (Relocation Approach) (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Bolitho & Cohen (2005) FLC 93-224
U & U (2002) FLC 93-112
M & S (2007) FLC 93-313
Goode & Goode (2006) FLC 93-286
Taylor & Barker (2007) FLC 93-345
Sampson & Hartnett (No. 10) (2007) FLC 93-350
Rosa & Rosa [2009] FamCAFC81
R & R (1998) FLC 92-820
Wiley & Wiley [2008] FamCAFC 153
Lamereaux & Noirnot (2008) FLC 93-364

APPLICANT:

Ms Simpson

RESPONDENT:

Mr Caldridge

FILE NUMBER:

MLC

11927

2007

DATE DELIVERED:

3 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

4-7 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davis

SOLICITOR FOR THE APPLICANT:

Middletons

COUNSEL FOR THE RESPONDENT:

Ms Weiner

SOLICITOR FOR THE RESPONDENT:

White Just & Moore

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

All previous parenting orders, including the Airport Watch List order made on 11 October 2007 in relation to the children of the marriage namely J born on … June 2001, N born … April 2004 and M born … April 2008 shall be and are hereby discharged.
The parents shall retain equal shared parental responsibility for the children.
The children shall live with the mother.
The father shall spend time with J and N as follows:
(a)In week one from Thursday after school until before school on Monday, commencing 11 June 2009;
(b)In week two from after school Thursday until before school on Friday, commencing 18 June 2009;
(c)For one half of all school term holidays by agreement and in default of agreement the first half, being from after school on the last day of school until 5.00pm on the middle Saturday of the school holidays;
(d)For one half of the summer school holidays provided that each parent shall have the children with them for one block of 14 days, noting that the school holidays are defined to commence from the conclusion of school until 6.00pm the day before the new school year.
The father shall spend school term time with M as follows:
(a)Until she is 20 months’ old:
(i)     In week one on Monday, Thursday and Friday for a period of five hours, and on Sunday for a period of eight hours, as agreed, commencing 11 June 2009;
(ii)    In week two on Thursday and Friday for a period of five hours, as agreed, commencing 18 June 2009;
(b)When she turns 20 months’ old:
(i)     In week one on Monday, Thursday and Friday for a period of five hours, as agreed, and on Sunday from 2:00 pm until 9.00 am Monday;
(ii)    In week two on Thursday and Friday for a period of five hours, as agreed.
(c)When she turns 30 months:
(i)     In week one on…

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 Simpson and Caldridge

Details

AGLC: Simpson and Caldridge [2009] FamCA 494
Case: [2009] FamCA 494
Decision Date: 3 June 2009

CaseChat Overview and Summary

This case involved a dispute between Simpson and Caldridge concerning parenting orders for their three children. The matter came before Dessau J.

The court was required to determine the most appropriate parenting arrangements for the children, considering the parents' respective capacities, the children's best interests, and the potential impact of any proposed changes on their circumstances, particularly in light of the mother's desire to return to the United States with the children and the father's request for equal shared parental responsibility.

Dessau J discharged all previous parenting orders, including an Airport Watch List order. The court ordered that the parents retain equal shared parental responsibility, with the children to live with the mother. The judgment details specific arrangements for the father's time with each child, progressively increasing over time, particularly for the youngest child, M, until she commences primary school. The orders also address holiday arrangements, special occasions, communication protocols, and the facilitation of passport applications for the children. The court noted the mother's emphasis on the childcare support available from her family in the United States, while acknowledging the father's availability and flexibility in Australia. The court considered the significant change in circumstances that relocating to a different country would entail for the children, but also noted the potential improvement in the mother's well-being. The court was not satisfied that the parents could at that stage truly and fully share the daily care of the children on an equal basis, deeming it contraindicated.

Orders

Orders of the court

All previous parenting orders, including the Airport Watch List order made on 11 October 2007 in relation to the children of the marriage namely J born on … June 2001, N born … April 2004 and M born … April 2008 shall be and are hereby discharged.

The parents shall retain equal shared parental responsibility for the children.

The children shall live with the mother.

The father shall spend time with J and N as follows:

(a) In week one from Thursday after school until before school on Monday, commencing 11 June 2009;

(b) In week two from after school Thursday until before school on Friday, commencing 18 June 2009;

(c) For one half of all school term holidays by agreement and in default of agreement the first half, being from after school on the last day of school until 5.00pm on the middle Saturday of the school holidays;

(d) For one half of the summer school holidays provided that each parent shall have the children with them for one block of 14 days, noting that the school holidays are defined to commence from the conclusion of school until 6.00pm the day before the new school year.

The father shall spend school term time with M as follows:

(a) Until she is 20 months’ old:

(i) In week one on Monday, Thursday and Friday for a period of five hours, and on Sunday for a period of eight hours, as agreed, commencing 11 June 2009;

(ii) In week two on Thursday and Friday for a period of five hours, as agreed, commencing 18 June 2009;

(b) When she turns 20 months’ old:

(i) In week one on Monday, Thursday and Friday for a period of five hours, as agreed, and on Sunday from 2:00 pm until 9.00 am Monday;

(ii) In week two on Thursday and Friday for a period of five hours, as agreed.

(i) In week one on Thursday and Friday for a period of five hours, as agreed, and on Sunday from 10:00 am until 9.00 am Monday;

(ii) In week two on Thursday and Friday for a period of five hours, as agreed.

(d) When she turns three years of age:

(i) In week one on Thursday for a period of five hours, as agreed, and on Saturday from 2.00pm until 9.00am Monday; and

(ii) In week two on Thursday and Friday for a period of five hours, as agreed.

(e) When she turns four years of age:

(i) In week one on Thursday for a period of five hours, as agreed, and on Saturday from 10.00am until 9.00am Monday; and

(ii) In week two on Thursday and Friday for a period of five hours, as agreed.

(f) When she turns five years of age:

(i) In week one on Thursday for a period of five hours, as agreed, and on Friday from 3.30pm until 9.00am Monday; and

(ii) In week two overnight on a Thursday with the other children.

(g) When she starts primary school:

(i) On the same basis as J and N.

The father shall spend school holiday time with M on the same basis as J and N once M starts primary school, but until then the regime set out in paragraph 5 of these Orders shall continue in the school holidays save that in the summer school holidays the mother shall have M with her for the same 14 day block that she has the other children.

The father shall spend time with all the children on the following special occasions:

(a) In 2010 and each alternate year thereafter on Halloween (31 October) in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;

(b) In 2010 and each alternate year thereafter on 4 July in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;

(d) Each year on Australian Father's Day (the first Sunday in September) from 10.00am until 7.00pm;

(e) Each year on the father’s birthday (… March) as follows:

(i) If the father’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and

(ii) If the father’s birthday falls on a week-end, then from 10.00am until 7.00pm;

(f) Each year on each of the children’s birthdays as follows:

(i) If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm;

(ii) If the relevant child’s birthday falls on a week-end, then from 3.00pm until 7.00pm; and

(g) Subject to paragraph 11 of these Orders, each year during the Christmas period as agreed between the parties and in the absence of agreement as follows:

(i) From 3.00pm on 24 December until 3.00pm on Christmas Day in any odd numbered year; and

(ii) From 3.00pm on Christmas Day to 3.00pm on 26 December in any even numbered year.

The father’s time shall be suspended as follows:

(a) In 2009 and each alternate year thereafter on Halloween (31 October) in the event that it falls on a weekday from after school (3.30pm) until 7.00pm, and if it falls on a week-end, from 10.00am until 7.00pm;

(b) In 2009 and each alternate year thereafter on 4 July in the event that it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;

(c) In 2009 and each alternate year thereafter on Thanksgiving from after school (3.30pm) until before school on the Friday;

(d) Each year on United States and Australian Mother's Days (both on the second Sunday in May) from 10.00am until 7.00pm; and

(e) Each year on each of the children’s birthdays as follows:

(i) If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and

(ii) If the relevant child’s birthday falls on a week-end, then from 10.00am until 3.00pm.

The father shall collect the children from and deliver the children to the mother’s home for all changeovers that do not occur at the school.

10.

The children shall be permitted to telephone the other parent at any time and each parent shall encourage and facilitate reasonable telephone calls.

11.

That sub-paragraph 4(a) and (b) shall be suspended during term and summer holiday periods and shall recommence as if the school holidays had not intervened.

12.

The mother shall be permitted to take the children for a holiday to America for one period not exceeding four weeks in each year, incorporating the Christmas period in each second year if she chooses, provided she gives the father:

(a) Three months’ prior written notice;

(b) An itinerary of the trip and a copy of return air tickets for herself and the children and details of where they will stay, at least one month before departure; and

13.

In the event the mother takes the children to America, she shall provide make-up time for the father on the week-end immediately before and the week-end immediately after any such holiday, and if it is in the Australian summer school holidays, for a block of 14 days’ of the holiday time, provided that M shall not spend more of that time with her father in any one block than commensurate with the regime in these Orders according to her age at the time.

14.

The parties shall do all acts and things and sign all such documents as may be required to obtain the following for M:

(a) US Consulate Report of Birth of Abroad;

(b) US Social Security Number;

(d) Australian Passport.

15.

The parties shall do all acts and things and sign all such documents as may be required to obtain or re-new and keep renewed (as the case requires):

(a) J’s American and Australian passport;

(b) N’s American and Australian passports; and

16.

The parents shall share equally any of the costs associated with complying with paragraphs 14 and 15 of these Orders.

17.

The solicitors for the mother shall hold the passport and shall release them to the mother and/or father only after receiving the written consent of both parties.

18.

The parents shall use a communication book or e-mail for all discussion, notification and advice of medical, education and personal notes concerning the children, and shall exchange that book regularly.

19.

The parents shall keep each other notified at all times of their residential address and contact phone numbers.

20.

The parents shall notify the other parent as soon as practicable in the event that any of the children suffer any illness or injury whilst in their care.

21.

The mother shall do all acts and things and sign all such documents as may be required to authorise the children’s respective educational institutions to provide to the father, at his expense:

(a) Copies of all school reports and any other reports relating to academic or other progress and behavioural issues in relation to the children; and

(b) all notices received from the children’s respective educational institutions as well as details of all functions, parent/teacher interviews, and other activities to which parents are ordinarily invited, and that the father shall be at liberty to attend at such functions, interviews and activities.

22.

The parents (together and by themselves) shall be and are hereby restrained from denigrating the other parent and/or members of the other parent’s family, in the presence and/or hearing of the children.

23.

The Independent Children’s Lawyer shall be discharged.

24.

Pursuant to s.65DA(2) and s 62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

25.

That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.

26.

That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The wife has emphasised the child-care support that her mother can offer. Although the husband is willing and available to help in that regard in Australia, his work hours offering sufficient flexibility, the wife sees her family’s support as more compelling. That is particularly understandable when it comes to emotional support. It is inarguable that her family would be the natural source of such support. Although they can provide it if they visit Australia, or the wife visits America, that is qualitatively different from being on hand on a day-to-day basis.(d)likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; If the children live in a different country from their father then there will be a significant change of circumstances for them. Clearly they will not have the easy regular access to him that they currently have. I have already noted the particularly profound effect for M, who is in the delicate stages of forming the requisite bonds of attachment. However, should the mother be permitted to return to her home country, and the supports available to her there, there is also likely to be an immediate improvement in her mental health and mental and physical well-being. If the husband decides to return to America, to follow the children, then the change in their circumstances, so far as their relationship with him is concerned, could be ameliorated. However that would depend on his finding work, and finding it in an area proximate to the mother. She will be living in a town of 7,500 people. Although there are cities not too far away, neither of them conducted their professional lives in that region in their 13-odd years together. And it is a big country. If he could find work, it could be a long way from where the mother is living. In that case, the children would in any event experience a substantial change to their current circumstances whereby they regularly see their father with only days between visits. Although M has never lived in the United States, if she is in the care of her primary attachment figure who is well and robust, she will settle. J lived there for nearly six of eight years and N for the first three years of her life. They are familiar with the mother’s family. A change of circumstances from Melbourne to Michigan is not as significant as it would be for children for whom it was a new experience or a place with which their primary carer was unfamiliar. It is the change in the living arrangements between their parents that would be keenly felt. If the children are to remain in Australia, a change to equal shared time between the parents, as sought by the husband, would be a significant change. It was clear from Mr P’s evidence that it is contraindicated in this case. First, in his opinion N would not cope with that arrangement. Otherwise, the parents’ relationship is such that, as he put it, they would be “splitting” rather than genuinely “sharing” the children. I have noted that they have communicated well at many times, and with the removal of this litigation from the equation, it would be hoped that their communication will improve. However, given what has passed between them I am not satisfied that they can at this stage truly and fully share the daily care of the children on an equal basis.