SOUTER & BARNARD - [2014] FCCA 3139

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOUTER & BARNARD

[2014] FCCA 3139

Catchwords:
FAMILY LAW – Parenting – future care arrangements – final parenting orders made by consent provide for a week about shared care arrangement – whether the court is or could be satisfied of an unacceptable risk to the children as a consequence of the shared care arrangement and allegations raised by each party in the proceedings – ongoing impact of conflict upon the children – representations made by the children – court satisfied that there is an absence of evidence that establishes an unacceptable risk.

FAMILY LAW – Costs – application for costs made by the mother seeking an order for costs against the father – application by the Independent Children’s Lawyer for a contribution to costs by the mother – consideration of the circumstances justifying an order for costs – court is absent a finding of a justifying circumstance to depart from the general rule – court not satisfied that it would be just and equitable to make an order for either application for costs.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CC, 65DAA(5), 68LA, 69ZN, 69ZT, 69ZV, 117, 118
International Convention on the Rights of the Child
Evidence Act 1995, s.140

Makita & Sprowles (2001) 52 NSWLR 705
Re R Children’s Wishes [2000] FamCA 43
Harrison & Woollard (1995) FLC 92-598
Deacon & Castle [2013] FCCA 691
Briginshaw v Briginshaw (1938) 60 CLR 336
Bennett & Bennett (1991) FLC 92-191
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812

Applicant:

MR SOUTER

Respondent:

MS BARNARD

File Number:

DGC 4442 of 2007

Judgment of:

Judge Harman

Hearing date:

25 June 2014

Date of Last Submission:

25 June 2014

Delivered at:

Albury

Delivered on:

25 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

Rama Myers Family Lawyers

Counsel for the Respondent:

Ms McCreadie

Solicitors for the Respondent:

Nevin Lenne & Gross

Counsel for the

Independent Children’s Lawyer: Mr Kenny

Solicitors for the

Independent Children’s Lawyer: Robb & Associates Solicitors

ORDERS

By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘X’ attached hereto.
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 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.
Grant leave to Independent Children’s Lawyer to make an application for contribution costs as regards the mother in the sum of $6386.50.
Dismiss that application.
Each party shall pay their own costs of and incidental to the proceedings.
The Independent Children’s Lawyer shall have leave to provide to the Family Therapist engaged pursuant to the above orders copies of such documents as have been produced in these proceedings as the Independent Children’s Lawyer considers would be relevant or of assistance to the…

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 SOUTER & BARNARD

Details

AGLC: SOUTER & BARNARD [2014] FCCA 3139
Case: [2014] FCCA 3139
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the matter of SOUTER & BARNARD, Judge Harman considered final parenting orders by consent between the parents concerning the future care arrangements for their two children. The proceedings involved allegations raised by each party regarding potential risks to the children arising from the proposed shared care arrangement, and the ongoing impact of conflict between the parents. The court also considered representations made by the children.

The primary legal issue before the court was whether it was satisfied that there was an unacceptable risk to the children as a consequence of the agreed shared care arrangement, taking into account the conflict between the parents and the children's representations. Additionally, the court was required to determine applications for costs made by both the mother and the Independent Children’s Lawyer.

Judge Harman was satisfied that there was an absence of evidence establishing an unacceptable risk to the children arising from the consent orders. Regarding costs, the court applied the general rule that parties bear their own costs in the absence of a justifying circumstance. Consequently, the court dismissed the mother's application for costs against the father and the Independent Children’s Lawyer's application for a contribution to costs from the mother, ordering that each party pay their own costs. The court made consent orders in accordance with the Terms of Settlement, which included provisions for equal shared parental responsibility, a week-about shared care arrangement, and detailed arrangements for holidays and communication. The Independent Children’s Lawyer was granted leave to apply for contribution costs from the mother, but this application was subsequently dismissed.

Orders

Orders of the court

By consent make Orders in accordance with the Terms of Settlement marked Exhibit ‘X’ attached hereto.

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 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.

Grant leave to Independent Children’s Lawyer to make an application for contribution costs as regards the mother in the sum of $6386.50.

Dismiss that application.

Each party shall pay their own costs of and incidental to the proceedings.

The Independent Children’s Lawyer shall have leave to provide to the Family Therapist engaged pursuant to the above orders copies of such documents as have been produced in these proceedings as the Independent Children’s Lawyer considers would be relevant or of assistance to the Family Therapist and provided notice is given to the parties in writing of the documents to be provided prior to their provision.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

EXHIBIT ‘X’

All previous parenting Orders be discharged.

The parents have equal shared parental responsibility of the children, X born (omitted) 2002 and Y born (omitted) 2004 (“the children”).

The children live with the Father and the Mother in alternate weeks, with changeover to take place each Friday at the conclusion of school, or in the event of it being a non-school day, handover occur at 5:00pm, beginning the 27 June 2014 with the mother.

For the purposes of changeover, the parents or their agent shall deliver or collect the children to and from school and in the event of it being a non-school day, handover occur by the Mother collecting the children from the Father’s residence at the commencement of time and the Mother returning the children to the Father’s residence at the conclusion of time, or such further or other arrangements as may be agreed to between the parents in writing including via SMS from time to time.

Notwithstanding the provision of Order 3, the children spend time with the Father and Mother during Christmas as follows:

(a) In even numbered years, the children shall be in the care of the Mother, from the conclusion of school on the last day of the school term until 5:00 pm on Christmas Day and in the care of the Father from 5:00pm Christmas Day until 5:00pm on 8 January and then in the care of the Mother from 5:00pm on 8 January until 5:00pm on 22 January and thereafter in the care of the Father pursuant to Order 2 herein, until the first Friday of the school term.

(b) In odd numbered years, the children shall be in the care of the Father from the conclusion of school on the last day of the school term until 5:00 pm on Christmas Day and in the care of the Mother from 5:00pm Christmas Day until 5:00pm on 8 January and then in the care of the Father from 5:00pm on 8 January until 5:00pm on 22 January and thereafter in the care of the Mother pursuant to Order 2 herein, until the first Friday of the school term.

Notwithstanding the provisions of Order 3 herein, the children’s time with the father be suspended on the following occasions:

(a) In even numbered years, from 5:00pm Good Friday until 5:00pm Easter Sunday.

(b) On Mother’s Day, from 5:00pm on the Saturday immediately prior to Mother’s Day until the commencement of school on Monday.

Notwithstanding anything provided for in Order 3 above, the children’s time with the mother be suspended on the following occasions:

(a) In odd numbered years, from 5:00pm Good Friday until 5:00 pm Easter Sunday.

(b) On Father’s Day, from 5:00pm on the Saturday immediately prior to Father’s Day until the commencement of school Monday.

That the children be at liberty to telephone the parent with whom they are not living at any reasonable time.

The parent with whom the children are not living be at liberty to telephone the children each Sunday and Tuesday between 5:00pm and 7:00pm.

10.

Neither parent shall enrol the children in any sporting or other after school activity without the written consent of the other parent.

11.

The parents shall ensure that the children attend any scheduled sporting or after school activity in which the children are enrolled in whilst in their care.

12.

Both parents, along with members of their family, be at liberty to attend any school function including parent teacher interviews and all other attendances/events which parents are usually invited to attend.

13.

Both parents keep the other informed of any significant medical injury or illness affecting the children when in their respective care along with the names, contact details and addresses of any treating medical, dental and allied health professional so that each parent may liaise with same.

14.

The passports for the children be held in the Federal Circuit Court of Australia, Melbourne Registry and only be transferred to, and released from, the Albury Registry by a signed statutory declaration from each party or Order of this Court and returned to the Registry within 72 hours upon the children’s return to the Commonwealth of Australia.

15.

In the event that either parent wishes to travel outside of Australia with the children or either of them, the party wishing to travel with the children or either of them must:

(a) Notify the other parent in writing, not less than eight weeks prior to the proposed departure date; and

(b) Request the other party to complete a statutory declaration to facilitate the release of the children’s passports pursuant to Order 14, such statutory declaration to be provided within 14 days of such request.

(c) Forward to the other parent not less than four weeks prior to the proposed departure date, a copy of the proposed itinerary including flight numbers and times and the proposed return date together with contact telephone numbers and addresses at which the children or either of them may be contacted for the duration of the time that the children remain outside of Australia.

16.

The parent wishing to travel outside of Australia with the children or either of them must ensure that the dates of the proposed travel do not fall for a period in excess of one (1) week within school term time unless the other parent consents in writing.

17.

In the event either parent wishes to take the children on an extended holiday, each parent may elect to spend a block with the children for a period of up to three (3) weeks on one occasion annually by providing no less than six (6) weeks written notice to the other parent and, in that event, make up time will be provided to the other parent at a time convenient to them, provided it does not coincide with any significant event which is otherwise provided for in these orders.

18.

Each parent be and is hereby restrained by injunction from himself or herself or their respective servants or agents as follows:

(a) Denigrating, assaulting, rebuking, or belittling the other parent or members of their household to the children and/or within their presence or hearing.

(b) From discussing these proceedings including any evidence given or filed in these proceedings with the children or in their presence and/or hearing.

19.

Save in the event of an emergency, both parents shall ensure the children attend (omitted) Medical Centre.

20.

Save in the event of an emergency, or when the Free Dental Clinic can provide an appointment for the children, both parties shall ensure that the children attend (omitted) Dentistry Practice.

21.

Each parent is to keep the other advised at all times of their residential address, residential phone number, emergency contact number and email address.

22.

Each parent shall, as far as practicable and save in the case of an emergency, communicate with each other by text message or email and shall in all communication between them be courteous and respectful of the other and focus upon issues in dispute between them in a non-judgmental and constructive fashion.

23.

Each parent shall at any time that they are in proximity to each other, conduct themselves with dignity and shall acknowledge the other courteously and treat the other with respect and shall ensure that any other person with them also does so.

24.

In the even that either party proposes to make an application for variation or enforcement of these orders, then any such application shall be filed in the Federal Circuit Court at Albury and shall, so far as is practicable, be listed before Judge Harman for determination and not otherwise.

25.

That the parties attend upon Ms H or such person as nominated by the Independent Children’s Lawyer for the purposes of assisting them to improve their communication and in the even that Ms H is unavailable, to such person as nominated by the Independent Children’s Layer and the parties do all acts and things as are necessary to attend such appointments as are arranged by the person and contribute equally to the cost of same. Such family therapy is confidential and not reportable in any future proceedings.

26.

That the parties shall ensure that the children attend school each school day and that in the event that either X or Y is unwell and unable to attend school:

(a) Each parent is to notify the other via SMS; and

(b) Obtain a Doctor’s Certificate if the absence is in excess of one day.

27.

That both children are to attend (omitted) Primary School and thereafter (omitted) College, (omitted) or such other school as the parties may agree in writing.

28.

That the parties are to do all acts and things necessary to ensure the children have a current passport at all times and that for this purpose, each parent shall sign any application for renewal of the children’s passports within seven (7) days of such a request being received from the other parent.

29.

That the Independent Children’s Lawyer be discharged.

30.

That the father and mother shall pay the Independent Children’s Lawyer costs as follows;

(a) $750 within seven (7) days payable by each party.

(b) $4,250 by 31 December 2014 payable by the father.

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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