Spencer and Zaber - [2014] FCCA 715

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPENCER & ZABER

[2014] FCCA 715

Catchwords:
FAMILY LAW – Parenting application – whether equal time or substantial and significant time – high conflict, poor communication and trust – low levels of parental insight – Jewish observance in father’s household more strict than in mother’s household – where the father does not call his new wife to give evidence – where children’s relationship with father’s wife is unknown – where equal time is neither in children’s best interest or reasonably practicable – court comments on disproportionality between length and intensity of litigation and the issues to be resolved – where the financial aspects of the case are to be dealt with in a separate judgment.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII

Aon Risk Services v ANU [2009] HCA 27
MRR v GR [2010] HCA 4
Klein & Klein [2010] FamCAFC 150
Collu & Rinaldo [2010] FamCAFC 53

Applicant:

MR SPENCER

Respondent:

MS ZABER

File Number:

SYC 3760 of 2011

Judgment of:

Judge Altobelli

Hearing dates:

10-12 July 2013, 28-29 January 2014 and 17 February 2014

Date of Last Submission:

8 April 2014

Delivered at:

Sydney

Delivered on:

8 May 2014

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Guterres

Solicitors for the Respondent:

Craddock Murray Neumann

Counsel for the Independent Children's Lawyer:

Mr Ladopoulos

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Sydney Central

ORDERS

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2004 (“Y”).

Live With

That the children live with the mother.

Spend Time With

That the children spend time with the father as follows:
(a)during New South Wales Government school terms, each alternate weekend from after school on Friday until before school on Monday (or, in the event that the Monday is not a school day, until before school on Tuesday), with the cycle of alternate weekends to recommence on the first weekend of each school term.
(b)During the New South Wales Government school holiday periods at the end of terms 1, 2 and 3, unless the mother and the father otherwise agree in writing (being by email or letter), from:
(i)After school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period; or
(ii)6:00pm on the second Saturday of the school holiday period until before school on the first day of the new school term,
provided that the father gives the mother not less than four (4) weeks notice in writing (being by email or letter) of which week (if any) he intends to have the children spend time with him during such school holiday period;
(c)during the New South Wales Christmas school holiday period, unless otherwise agreed in writing (being by email or letter), for one week (7 nights) in either:
(i)the first two weeks of the school holiday period; or
(ii)the last two weeks…

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 Spencer and Zaber

Details

AGLC: Spencer and Zaber [2014] FCCA 715
Case: [2014] FCCA 715
Decision Date: 8 May 2014

CaseChat Overview and Summary

This matter concerned parenting orders for two children, X and Y, before Judge Altobelli. The dispute between the mother and the father related to the arrangements for the children's living arrangements, time spent with each parent, communication, health, education, and overseas travel.

The court was required to determine the extent of parental responsibility, where the children would live, and the specific times they would spend with each parent, including during school terms, holidays, and special occasions. Further issues included provisions for communication between parents regarding the children's health and education, arrangements for contact details and overseas travel, and orders restraining negative discussions about the parents in the children's presence.

The court ordered that the mother and father have equal shared parental responsibility for the children. The children were ordered to live with the mother. Specific provisions were made for the children to spend time with the father, including alternate weekends during school terms, defined periods during school holidays with notice requirements, and specific Jewish holidays. Additional time was allocated for the father on Father's Day and other agreed times, with provisions for reciprocal time with the mother. The court also made detailed orders regarding the children's attendance at specific schools, with the father to be responsible for the fees for Y's attendance at (omitted) College. Provisions were also made for communication regarding absences from school, contact details, and overseas travel, including notice periods, travel insurance, and passport arrangements. Finally, both parents were restrained from discussing the proceedings or speaking negatively about the other parent in the children's presence.

Orders

Orders of the court

Parental Responsibility

That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2004 (“Y”).

Live With

That the children live with the mother.

Spend Time With

That the children spend time with the father as follows:

(a) during New South Wales Government school terms, each alternate weekend from after school on Friday until before school on Monday (or, in the event that the Monday is not a school day, until before school on Tuesday), with the cycle of alternate weekends to recommence on the first weekend of each school term.

(b) During the New South Wales Government school holiday periods at the end of terms 1, 2 and 3, unless the mother and the father otherwise agree in writing (being by email or letter), from:

(i) After school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period; or

(ii) 6:00pm on the second Saturday of the school holiday period until before school on the first day of the new school term,

provided that the father gives the mother not less than four (4) weeks notice in writing (being by email or letter) of which week (if any) he intends to have the children spend time with him during such school holiday period;

(c) during the New South Wales Christmas school holiday period, unless otherwise agreed in writing (being by email or letter), for one week (7 nights) in either:

(i) the first two weeks of the school holiday period; or

(ii) the last two weeks of the school holiday period,

provided that, by the end of Week 3 of Term 4, the father gives the mother notice in writing (being by email or letter) of the date and time on which the children’s week with him will commence,

That the children spend additional time with the father as follows:

(a) on the following Jewish holidays, the dates of which shall be as set out on the website (omitted) (or such alternative calendar as the mother and the father may agree to in writing (being by email or letter)) and noting that the orders are intended to allow the children to be with the father at sunset on the day before the dates set out in such website:

(i) during Pesach (Passover), as follows:

A. from after school (or from 4:00pm if not a school day) on the sixth day of Pesach until before school (or 9:00am if not a school day) three days later;

(ii) during Shavuot (Festival of Weeks), as follows:

A. from after school (or from 4:00pm if not a school day) on the day before the first day of Shavuot until before school (or 9:00pm if not a school day) three days later;

(iii) during Rosh Hashana (Jewish New Year), as follows:

A. from after school (or from 4:00pm if not a school day) on the day before the first day of Rosh Hashana until before school (or 9:00am if not a school day) three days later;

(iv) during Yom Kippur (Day of Atonement) as follows:

A. from after school (or from 4:00pm if not a school day) on the day before the first day of Yom Kippur until before school (or 9:00am if not a school day) two days later;

(v) during Sukkot (Feast of Tabernacles) as follows:

A. from after school (or from 4:00pm if not a school day) on the day before the first day of Sukkot until before school (or 9:00am if not a school day) three days later;

(vi) during Shmini Atzeret (Eighth Day of Assembly) and Simchat Torah (Day of Celebrating the Torah) as follows:

A. from after school (or from 4:00pm if not a school day) on the day before the first day of Shmini Atzeret until before school (or 9:00am if not a school day) three days later;

with the father to:

(vii) take all reasonable steps to ensure that the children attend school on such days if they are required to do so by their respective schools

(viii) make appropriate arrangements for the children to travel from their respective schools to that father’s home at the conclusion of the school day or collect the children from the mother’s home at the beginning of this time (if not a school day); and

(ix) make appropriate arrangements for the children arrive at their respective schools in time for the commencement of the school day or return them to the mother’s home at the end of this time (if not a school day);

(b) on the Father's Day weekend from 7:00 pm on Saturday until 7:00 pm on Sunday, with the father to be responsible for:

(i) collecting the children from the mother’s residence at the beginning of this time; and

(ii) returning them to the mother’s home at the end of this time; and

(i) any such agreement must specify whether the children are to spend alternative time(s) with the mother in lieu of the time missed; and

(ii) if the children are to spend alternative time(s) with the mother in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the mother and what the arrangements for changeover will be.

That Y spend additional time with the father on all (omitted) College, pupil free days and school holidays which do not coincide with New South Wales Government school pupil free days and school holidays (“(omitted) College non-school days”), from after school (or 4:00 pm if not a school day) on the day before such (omitted) College non-school day(s) until before school (or 9:00 am if not a school day) on the day after the (omitted) College non-school day(s).

That the children's time with the father pursuant to Orders 3, 4, 5 and 6 above shall be suspended:

(a) on each Mothers' Day weekend, from 7:00 pm on Saturday until 7:00 pm on Sunday, with the mother to be responsible for:

(i) collecting the children from the father’s residence at the beginning of this time; and

(ii) returning them to the father’s home at the end of this time;

(b) each Christmas from 4:00 pm on Christmas Eve until 7:00 pm on Christmas Day, with the mother to be responsible for:

(i) collecting the children from the father’s residence at the beginning of this time; and

(ii) returning them to the father’s home at the end of this time; and

(i) any such agreement must specify whether the children are to spend alternative time(s) with the father in lieu of the time missed; and

(ii) if the children are to spend alternative time(s) with the father in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the father and what the arrangements for changeover will be.

That for the purposes of these Orders, unless otherwise provided for in these orders or otherwise agreed between the father and the mother in writing (being by email or letter), changeovers shall occur as follows:

(a) for changeovers which occur at the start of a school day, the parent with whom the children have been living or spending time prior to the time of changeover shall make appropriate arrangements for the children to arrive at their respective schools in time for the commencement of the school day;

(b) for changeovers that occur at the end of the school day, the parent with whom the children will be living or spending time after the time of changeover shall make appropriate arrangements for the children to travel from their respective schools to that parent’s home at the conclusion of the school day;

(i) the father shall be responsible for collecting the children from the mother’s home at the commencement of the time they are to spend with the father; and

(ii) the mother shall be responsible for collecting the children from the father’s home at the end of the time they are spending with him.

Communicate With

The mother and the father ensure the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.

Health

That the mother and the father shall:

(a) provide each other with and keep each other advised of the names and addresses of the children’s treating doctors;

(b) inform each other in writing (being by email or letter) as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and

(c) ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the receipt of the report.

10.

That both the father and mother shall be entitled to:

(a) attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and

(b) discuss the children’s condition with such treating doctor or specialist medical consultant,

however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.

11.

That the mother shall ensure that the father is notified as soon as practicable if, while in her care:

(a) either of the children is admitted to hospital;

(b) either of the children is involved in a medical emergency; and

(c) either of the children will be required to take medication when they spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours that the children are to spend with the father.

12.

That the father shall ensure that the mother is notified as practicable if, while in his care:

(a) either of the children is admitted to hospital;

(b) either of the children is involved in a medical emergency; and

(c) either of the children will be required to take medication when they returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.

Education

13.

That, unless the mother and the father otherwise agree in writing (being by email or letter), Y continue to attend (omitted) College for both primary and secondary schooling, on the basis that the father must:

(a) accept responsibility for and pays for all (omitted) College fees as per (omitted) College's Term Fee Statements in respect of Y’s attendance at (omitted) College each year and enters into a contract with (omitted) College to that effect by no later than one week before the end of (omitted) College's Term 4 each year; and

(b) provide the mother with a copy of the above contract by the end of (omitted) College's Term 4.

14.

That, unless the mother and the father otherwise agree in writing (being by email or letter), X continue to attend (omitted) High School.

15.

That the mother and the father notify each other in the event that either of the children will be or has been absent from school fore more than two consecutive school days.

Contact Details

16.

That the mother and the father notify each other of any change in telephone contact numbers and email address, such notification to be made in writing (being by email or letter) and within twenty-four (24) hours of any change.

17.

That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing (being by email or letter) and no less than fourteen (14) days prior to the proposed change.

Overseas Travel

18.

That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the mother, at the mother’s expense, in every twelve month period commencing 1 December of each even numbered year (e.g. between 1 December 2014 and 30 November 2015), provided that:

(a) the mother provides the father with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;

(b) the period of absence from Australia does not exceed four (4) weeks; and

(i) the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;

(ii) a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and

(iii) in the event that the period of travel will result in either of the children having to miss more than three (3) school days, a copy of a letter or other document evidencing that the relevant school has approved the child’s absence from school during the overseas travel.

19.

That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the father, at the father’s expense, in every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016), provided that:

(a) the father provides the mother with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;

(b) the period of absence from Australia does not exceed four (4) weeks; and

(i) the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;

(ii) a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and

20.

That, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the Mother and the Father shall:

(a) take all steps necessary to ensure that each of the children has a current, valid Australian passport at all times, the cost of obtaining or renewing such passports to be shared equally by the mother and the father;

(b) ensure that the children’s current passports are held by:

(i) the mother in 2014 during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2014 and 30 November 2015); and

(ii) by the father during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016).

Restraints and Injunctions

21.

That the Mother and the Father shall:

(a) be restrained from:

(i) discussing these proceedings in the hearing of or presence of the children;

(ii) speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;

(b) take all reasonable steps to prevent any other person:

(i) discussing these proceedings in the hearing of or presence of the children;

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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