Solberg and Rounds - [2017] FCCA 1066

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOLBERG & ROUNDS

[2017] FCCA 1066

Catchwords:
FAMILY LAW – Parenting – final hearing – discrete issue of parental responsibility in relation to health issues.

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B

Cases cited:

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713

Lindell & Ranteri [2010] FamCA 52

McCall & Clark [2009] FamCAFC 92

Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MR SOLBERG

Respondent:

MS ROUNDS

File Number:

SYC 3594 of 2009

Judgment of:

Judge Monahan

Hearing dates:

5 and 6 April 2017

Date of Last Submission:

18 April 2017

Delivered at:

Sydney

Delivered on:

8 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Pope

Solicitors for the Applicant:

Derek Legal

Counsel for the Respondent:

Mr Keller

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

Thexton Lawyers

Ms Tran

Legal Aid New South Wales

ORDERS

THE COURT ORDERS THAT:

Paragraphs 1 to 26 of the Minute attached to the Orders made on 5 April 2017 be discharged.
All extant parenting Orders be and are hereby discharged.

THE COURT ORDERS ON A FINAL BASIS THAT:

The child [X], born 1 August 2007 (“the child”) live with the mother when not spending time with the father pursuant to these Orders.
Subject to paragraphs 5 and 6 herein, the parties have equal shared parental responsibility for the child.
The mother have sole parental responsibility for decisions regarding the child’s education (both current and future), and the mother shall keep the father informed regarding all major decisions that she makes concerning the child.
The mother have sole parental responsibility for decisions regarding the child’s health and medical needs and the mother shall keep the father informed regarding all major decisions that she makes concerning the child including any proposed consultation with medical professionals and she allow the father reasonable opportunity to have an input prior to making the decision.
The child spend time with the father as follows:
(a)For a period of eight (8) days during each of the Autumn school holidays, from 5pm on the second Saturday of the school holiday period until 5pm on the last Sunday of the school holiday period;
(b)For a period of eight (8) days during each of the Winter and Spring school holidays, from 5pm on the first Saturday of the school holiday period until 5pm on the second Sunday of the school holiday period;
(c)During the Summer school holidays commencing in 2017, for the first sixteen (16) days of the school holiday period, from 5pm on the last day of the school term until 5pm on the sixteenth (16^th) day;
(d)During the Summer school holidays commencing in 2018 and each alternate year thereafter, for the last twenty (20) days of the school holiday period, from 5pm on the first day of the twenty (20) day period until 5pm on the day prior to the recommencement…

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 Solberg and Rounds

Details

AGLC: Solberg and Rounds [2017] FCCA 1066
Case: [2017] FCCA 1066
Decision Date: 8 June 2017

CaseChat Overview and Summary

This matter concerned parenting orders for a child, [X], born 1 August 2007. The court was required to determine the living arrangements for the child, the allocation of parental responsibility, and the specific times the child would spend with each parent. Additionally, the court addressed provisions for communication between the child and parents, travel arrangements, and the management of the child's passport.

The court's reasoning focused on establishing orders that reflected the child's best interests, particularly concerning their education and health. It was determined that the child would live with the mother, with both parents sharing equal parental responsibility. However, the mother was granted sole parental responsibility for decisions regarding the child's education and health, with the obligation to keep the father informed of all major decisions. The court then detailed a comprehensive schedule for the child's time with the father, including specific arrangements for school holidays and travel, as well as provisions for communication between the child and each parent.

The court also made orders concerning international travel, permitting the child to travel internationally under specific conditions, including notification requirements and the provision of travel insurance. The mother was authorised to apply for and hold the child's Australian passport, with the father having access for overseas travel purposes. Finally, the court mandated that any disputes regarding the interpretation or enforcement of these orders be addressed through counselling or mediation before further court applications.

Orders

Orders of the court

THE COURT ORDERS THAT:

Paragraphs 1 to 26 of the Minute attached to the Orders made on 5 April 2017 be discharged.

All extant parenting Orders be and are hereby discharged.

THE COURT ORDERS ON A FINAL BASIS THAT:

The child [X], born 1 August 2007 (“the child”) live with the mother when not spending time with the father pursuant to these Orders.

Subject to paragraphs 5 and 6 herein, the parties have equal shared parental responsibility for the child.

The mother have sole parental responsibility for decisions regarding the child’s education (both current and future), and the mother shall keep the father informed regarding all major decisions that she makes concerning the child.

The mother have sole parental responsibility for decisions regarding the child’s health and medical needs and the mother shall keep the father informed regarding all major decisions that she makes concerning the child including any proposed consultation with medical professionals and she allow the father reasonable opportunity to have an input prior to making the decision.

The child spend time with the father as follows:

(a) For a period of eight (8) days during each of the Autumn school holidays, from 5pm on the second Saturday of the school holiday period until 5pm on the last Sunday of the school holiday period;

(b) For a period of eight (8) days during each of the Winter and Spring school holidays, from 5pm on the first Saturday of the school holiday period until 5pm on the second Sunday of the school holiday period;

(c) During the Summer school holidays commencing in 2017, for the first sixteen (16) days of the school holiday period, from 5pm on the last day of the school term until 5pm on the sixteenth (16th) day;

(d) During the Summer school holidays commencing in 2018 and each alternate year thereafter, for the last twenty (20) days of the school holiday period, from 5pm on the first day of the twenty (20) day period until 5pm on the day prior to the recommencement of school (being the twentieth (20th) day);

(e) During the Summer school holidays commencing in 2019 and each alternate year thereafter, for the first twenty (20) days of the school holiday period, from 5pm on the last day of the school term until 5pm on the twentieth (20th) day; and

(f) At such other times as agreed between the parties from time to time in writing (including by SMS text message).

Until 1 December 2019, for the purpose of facilitating the child’s time with the father pursuant to these Orders:

(a) The mother shall deliver the child to the departure level drop-off point of the Sydney domestic airport within one (1) hour of receiving an SMS text message from the father, informing her that his flight has landed at the commencement of the child’s time with the father pursuant to these orders.

(b) The mother shall collect the child from the express pick-up zone of the Sydney domestic airport within one (1) hour of receiving an SMS text message from the father informing her that his flight has landed at the conclusion of the child’s time with the father pursuant to these orders.

10.

As from 1 December 2019, for the purpose of facilitating the child’s time with the father pursuant to these Orders:

(a) At the commencement of the spending time, the mother shall do all acts and things required to ensure that the child is delivered to the unaccompanied departure gate drop-off point at Sydney Domestic Terminal and the father shall arrange for the collection of the child at the conclusion of the flight at (omitted) Domestic Airport;

(b) At the conclusion of the spending time, the father shall do all acts and things required to ensure that the child is delivered to the unaccompanied departure gate drop-off point at (omitted) Domestic Terminal and the mother shall arrange for the collection of the child at the conclusion of the flight at Sydney Domestic Airport; and

(c) The father shall provide to the mother not less than 7 days prior to the departure flight, by email, a copy of the child’s itinerary.

11.

For the purpose of any flight bookings, the father shall ensure that such flight times will not be before 7pm Sydney time if the child is to travel on a business day (Monday – Friday).

12.

The father be at liberty to travel with the child on domestic air flights to and from (omitted) Airport at any time during the child’s time with him pursuant these Orders.

13.

The father be at liberty to communicate with the child by telephone or FaceTime (provided that both parties have the appropriate technology):

(a) Each Thursday and Sunday between the hours of 7pm and 8pm;

(b) On Christmas Day between the hours of 10am and 11am;

(d) On the child’s birthday at 7pm on school days, and 10am on non-school days;

(e) On the father’s birthday at 7pm on school days, and 10am on non-school days; and

(f) At such other times as agreed between the parties, and for the purposes of this Order:

(i) The father shall initiate such communication; and

(ii) The mother shall ensure that the mobile telephone is sufficiently charged and serviceable, and that the child is available to receive the father’s call.

14.

When the child is spending time with the father pursuant to these Orders, the mother be at liberty to communicate with the child by telephone or FaceTime (provided that both parties have the appropriate technology):

(a) Each Thursday and Sunday between the hours of 7pm and 8pm;

(b) On Christmas Day between the hours of 10am and 11am; and

(i) The mother shall initiate such communication; and

(ii) The father shall ensure that the mobile telephone is sufficiently charged and serviceable and that the child is available to receive the mother’s call.

15.

The child be at liberty to communicate with either party by telephone at any other reasonable time that he expresses a wish to do so, and in this regard, the party with the child shall facilitate the child’s communication with the other party.

16.

Each party shall at all times provide the child with suitable sleeping arrangements (including a separate bedroom and bed), and ensure that whilst travelling with the child, the child is provided with a separate bed.

17.

Each party shall:

(a) Inform and keep the other informed at all times of their respective telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and each party shall notify the other of any changes thereto within forty-eight (48) hours of the date of such change occurring;

(b) In the event that the child is prescribed medication, notify the other as soon as is practicable thereafter, but not later than twenty-four (24) hours after the medication has been prescribed, and ensure that the child’s prescription medication is provided to the other at changeovers;

(c) Follow the treatment requirements made by any medical, therapeutic or allied health care professionals for the child, and ensure that any prescribed medication is administered to the child in accordance with the directions for use (and ensure that the child is aware that such medication is being administered); and

(d) In the event that the child suffers from serious illness or injury, notify the other immediately and provide details of the medical professional or medical facility upon which the child attends.

18.

The mother shall inform and keep the father informed at all times of the names, contact telephone numbers and addresses of all treating medical, therapeutic or allied health care professionals attended upon by the child.

19.

The father shall be entitled to communicate with the child’s treating medical, therapeutic or allied health care professionals for the purpose of obtaining information as to matters relevant to the child’s health and welfare, including information regarding any treatment recommended or undertaken, and these Orders shall be sufficient as authority for this purpose.

20.

Each party be at liberty to attend any school functions, activities and events that allow for parental attendance, including but not limited to, concerts, plays, sporting fixtures, open days, excursions, fetes, exhibitions, speech nights, assemblies, parent and teacher interviews, canteen duties, and social functions.

21.

This Order authorises any school attended by the child to provide to each party, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of school reports to both the mother and the father individually, then the mother shall provide copies to the father within forty eight (48) hours of receipt of same.

22.

If information is not otherwise available via the “(omitted school website).”, the mother shall email to the father copies of all medical reports (provided they are in her possession), school reports, awards and reports relating to the child within forty eight (48) hours of receipt of same and shall notify the father of:

(a) Any schedule times for parent/teacher interviews; and

(b) Any ceremony (religious or otherwise) involving the child, so that the father may elect to make his own appointment for parent/teacher interviews or attend.

23.

Without admissions, each party be and is hereby restrained by injunction from:

(a) Showing the child documents in these proceedings, or discussing these proceedings or any other legal proceedings in which either party is or has been a party in the presence or hearing of the child, and each party shall use their best endeavours to ensure that no other person does so in the presence or hearing of the child and immediately remove the child from any environment that exposes him to the same;

(b) Attempting to influence the child’s views in relation to the time that he spends with the father or the child’s living arrangements with the mother;

(c) Abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child or by use of social media, and each party shall use their best endeavours to ensure that no other person does so in the presence or hearing of the child and immediately remove the child from any environment that exposes him to the same;

(d) Exposing the child to family violence including emotional or verbal abuse; and

(e) Striking or applying any form of physical chastisement to the child, and each party shall use their best endeavours to ensure that no other person does so and immediately remove the child from any environment that exposes him to the same.

24.

Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision), the child be permitted to travel internationally.

25.

Pursuant to Section 65Y(2)(b) of the Family Law Act 1975 (Cth), each party be at liberty to take the child from Australia to a place outside of Australia during the time that the child is living with or spending time with them, or for such other period as agreed between the parties from time to time in writing, provided that:

(a) The child is not taken to a country or jurisdiction that:

(i) Is not a Convention country listed in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986; and

(ii) Has been classified by the Department of Foreign Affairs and Trade as ‘Level 2 - Exercise a high degree of caution’ or equivalent or higher at the date of departure;

(b) The travelling party provides to the other:

(i) Not less than two (2) weeks prior to the intended departure date, written notice of his or her intention to travel;

(ii) Not less than two (2) weeks prior to the departure date, a detailed itinerary of the proposed travel, including details of departure and return dates, each destination, flight numbers, methods of travel, where the child will be staying, copies of documents sufficient to demonstrate that the child and the travelling party each have a paid return ticket; and

(iii) Not less than two (2) weeks prior to departure, copies of certificates of travel insurance which include medical cover for the child and the travelling party and which cover the child and the travelling party for each relevant destination and duration of travel.

(c) The travelling party ensures that the child is fully vaccinated as recommended by the child’s treating general medical practitioner for each travel destination.

26.

Pursuant to section 11(4)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) the mother be permitted to apply for and have issued to her an Australian passport for the child, or renew any such passport in the absence of consent or otherwise of the father, AND IT IS REQUESTED that the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of any such passport.

27.

The cost of the child’s passport application and any subsequent renewal of the child’s Australian passport shall be born equally between the parties.

28.

The mother shall hold any Australian passport issued to the child until the child attains the age of eighteen (18) years, save and except when the father seeks the child’s Australian passport to be released for the purpose of overseas travel in compliance with these Orders, and in this regard, the mother shall not unreasonably withhold the child’s Australian passport in such circumstances.

29.

The father shall return the child’s Australian passport to the mother as soon as is practicable, but otherwise within seven (7) days of the child's return to Australia.

30.

In the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these Orders, the parties, before making any further application to a court shall:

(a) Attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or

(b) Participate in family dispute resolution with a Family Relationship Centre or a person authorised under section 10G of the Family Law Act 1975 (Cth).

AND THE COURT FURTHER ORDERS THAT:

31.

The appointment of the Independent Children’s Lawyer be discharged.

32.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. Paragraphs 3 to 5 and 7 to 32 of these orders restate the minute of consent orders, with agreed amendments, which were made in the orders of 5 April 2017.

B. Pursuant to ss.65DA(2) and 62B 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 Annexure A and those particulars are included in these orders.

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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