Sproat & Brimm - [2013] FCCA 1823

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPROAT & BRIMM

[2013] FCCA 1823

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – whether equal shared parental responsibility rebutted by evidence that it would not be in the children’s best interests – whether a graduated approach towards children spending equal time with each parent is in children’s best interest – Court not bound to follow recommendations in Court Expert report.

Legislation:

Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Sproat & Brimm [2012] FMCAfam 105

Applicant:

MR SPROAT

Respondent:

MS BRIMM

File Number:

SYC 7819 of 2011

Judgment of:

Judge Scarlett

Hearing dates:

8 – 10 & 31 October 2013

Date of Last Submission:

31 October 2013

Delivered at:

Sydney

Delivered on:

12 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Robyn Sexton & Associates

Counsel for the Respondents:

Ms McMahon

Solicitors for the Respondents:

Blake Lawyers

Independent Children's Lawyer:

Ms Smith

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father is to have sole parental responsibility for all decisions of a major long-term nature affecting the care, welfare and development of the children of the relationship [X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2008 including which school the children are to attend PROVIDED THAT the Father consults the mother prior to making any decisions about which High School the children are to attend.
The children [X], [Y] and [Z] are to live with the Father.
The children [X], [Y] and [Z] are to spend time with the Respondent Mother as follows:
(a)During the school term:
(i)each alternate weekend from immediately after school on Friday until the commencement of school on Monday unless the Monday is a public holiday in which case the time will conclude at the commencement of school on the Tuesday; and
(ii)each Wednesday from immediately after school until 7:00pm and for the purposes of this time the Mother is to collect the children from school at the commencement of the time and will return them to the Father’s residence at the conclusion of the time;
(b)from 10:00am on Mother’s Day until the commencement of school on the Monday;
(c)on each of the children’s birthdays and the Mother’s birthday from immediately after school if the day falls on a school day or 3:00pm if the day does not fall on a school day until 7:00pm;
(d)for half of each school holiday period at the end of Terms 1, 2 and 3 as agreed but failing agreement:
(i)for the first half in 2014 and each even numbered year thereafter; and
(ii)for the second half in 2015 and each odd numbered year thereafter;
(e)if Easter does not coincide with a school holiday period, then the children [X],…

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 Sproat & Brimm

Details

AGLC: SPROAT & BRIMM [2013] FCCA 1823
Case: [2013] FCCA 1823
Decision Date: 12 November 2013

CaseChat Overview and Summary

In the matter of *Sproat & Brimm*, heard before Judge Scarlett, the dispute concerned parenting orders for three children. The applicant father sought orders for sole parental responsibility and for the children to live with him, while the respondent mother sought specific time arrangements with the children.

The court was required to determine the best interests of the children in relation to their living arrangements, parental responsibility for major long-term decisions, and the specific time each parent would spend with the children. This included considerations regarding the children's schooling, extracurricular activities, communication with parents, and travel arrangements.

The court ordered that all earlier parenting orders be discharged. The father was granted sole parental responsibility for all major long-term decisions concerning the children's care, welfare, and development, with the proviso that he consult the mother regarding their high school education. The children were ordered to live with the father, and detailed provisions were made for the mother's time with the children, including alternate weekends, mid-week time, specific holidays, birthdays, and school holiday periods. The orders also included provisions for communication between parents and children, notification of significant events, and restrictions on parental conduct, such as denigrating the other parent or administering illicit drugs when the children are in their care. The court also made orders regarding the children's passports, travel, and the appointment of the Registrar to execute documents if a party fails to do so.

Orders

Orders of the court

All earlier parenting Orders are discharged.

The Applicant Father is to have sole parental responsibility for all decisions of a major long-term nature affecting the care, welfare and development of the children of the relationship [X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2008 including which school the children are to attend PROVIDED THAT the Father consults the mother prior to making any decisions about which High School the children are to attend.

The children [X], [Y] and [Z] are to live with the Father.

The children [X], [Y] and [Z] are to spend time with the Respondent Mother as follows:

(a) During the school term:

(i) each alternate weekend from immediately after school on Friday until the commencement of school on Monday unless the Monday is a public holiday in which case the time will conclude at the commencement of school on the Tuesday; and

(ii) each Wednesday from immediately after school until 7:00pm and for the purposes of this time the Mother is to collect the children from school at the commencement of the time and will return them to the Father’s residence at the conclusion of the time;

(b) from 10:00am on Mother’s Day until the commencement of school on the Monday;

(c) on each of the children’s birthdays and the Mother’s birthday from immediately after school if the day falls on a school day or 3:00pm if the day does not fall on a school day until 7:00pm;

(d) for half of each school holiday period at the end of Terms 1, 2 and 3 as agreed but failing agreement:

(i) for the first half in 2014 and each even numbered year thereafter; and

(ii) for the second half in 2015 and each odd numbered year thereafter;

(e) if Easter does not coincide with a school holiday period, then the children [X], [Y] and [Z] are to spend the following time with the Mother:

(i) in 2014 and each even numbered year thereafter from 9:00am on Good Friday to 7:00pm on Easter Saturday; and

(ii) in 2015 and each odd numbered year thereafter from 7:00pm on Easter Saturday to 6:00pm on Easter Monday;

(f) during the Christmas/January school holidays as follows:

(i) in 2013 and each odd numbered year thereafter, from immediately after school on the last day of the school term to midday on Christmas Day and from 6:00pm on 4 January to 6:00pm on 18 January; and

(ii) in 2014 and each even numbered year thereafter from midday on Christmas Day to 6:00pm on 17 January; and

(g) at such other times as the parties shall agree.

The Mother’s time with the children is to be suspended as follows:

(a) from 10:00am on Father’s Day, if it occurs on a day that the children would otherwise spend with the Mother according to these Orders and for this purpose the Father will collect the children from the Mother’s residence; and

(b) on each of the children’s birthdays and the Father’s birthday from immediately after school if the day falls on a school day or 3:00pm if the day does not fall on a school day until 7:00pm if any of the birthdays fall on a day that the children would otherwise spend with the Mother according to these Orders.

For the purpose of implementing these Orders:

(a) Except as otherwise agreed or when changeover occurs through school, the mother is to collect the children from the Father’s residence at the commencement of their time with her and the Father is to collect the children from the Mother’s residence at the conclusion of their time with her;

(b) School holidays are deemed to commence immediately after school on the day that the children last attend school at the end of the school term (and if there is a difference between the children, on the day the last of the children attends school) and will conclude immediately before school on the day the children resume attendance at school at the commencement of the school term (and if there is a difference between the children, on the day the first of the children resumes attendance at school at the commencement of the school term); and

(i) First weekend of the school term if the children spend the first half of the preceding holiday period with the Mother; and

(ii) The second weekend of the school term if the children spend the second half of the preceding school holiday period with the Mother.

Each parent is to cause the children to attend all scheduled extra-curricular activities and social activities during periods that the children are with that parent.

Each parent must do all such things as may be necessary to ensure that the children may communicate with the other parent or member of that parent’s household by telephone, SMS text message, “Skype’, “Facetime’ or like form of communication at all reasonable times:

(a) on at least one occasion when the children are living with the other parent during each holiday period; and

(b) as the children request when they are spending time with the other parent.

Each party must notify the other party promptly of any illness or injury suffered by the children or any of them requiring hospitalisation.

10.

Each party must promptly notify the other of any change to his or her residential address, contact telephone number or email address.

11.

Each party must keep the other informed of all medical, dental and other health-related treatments being undertaken by the children and the identity and contact details of the treating health professional.

12.

Each parent is restrained from:

(a) criticising or denigrating the other parent or any member of that parent’s household within the presence or hearing of the children or from causing or permitting any other person to do so;

(b) conveying or attempting to convey messages to the other parent or to coordinate the implementation of these orders via any of the children;

(c) enrolling or re-enrolling the children in an extra-curricular activity which would ordinarily interfere with the time the children are to spend with the other parent, other than with that parent’s prior consent. For the avoidance of doubt, nothing in this restraint is intended to prohibit a parent from enrolling the children in an extra-curricular activity that ordinarily occurs on days and times when the children are spending time with or living with that parent according to these Orders; and

(d) administering to himself or herself any illicit drug at any time when the children or any of them are in their care or for twelve (12) hours beforehand.

13.

Each parent must do all acts and things, execute all documents and provide all authorities reasonably necessary required to ensure that:

(a) each party is at liberty to communicate directly with the children’s school teachers and other school authorities as to the children’s progress at school, whether of an academic or psychosocial nature and to enable the children’s school records to:

(i) show each parent as a person to be contacted in case of emergency; and

(ii) ensure that each parent’s name is on the mailing list for copies of school reports, newsletters, circulars and other documents ordinarily provided to parents of children attending that school;

(b) each parent is at liberty to communicate with any treating health professional as to any health-related treatment being undertaken by the children without necessarily first referring to the other parent; and

(c) each parent is at liberty to communicate directly with the coordinators or directors of any extra-curricular activity in which children participate as to the children’s participation and progress in the activity and any issues being experienced by the children during the activity and to enable the children’s enrolment records to:

(i) show each parent as a person to be contacted in case of emergency; and

(ii) ensure that each parent’s name is on the mailing list for copies of newsletters, circulars and other documents ordinarily provided to parents of children enrolled in the activity.

14.

The Father is to retain the children’s passports other than at times when the children are travelling overseas with the Mother and for the purposes of ensuring that the children have current passports each parent must, within seven (7) days of a request being made of them by the other parent, sign all documents and do all acts and things to enable a completed passport application to be submitted to the issuing authority and, if necessary, provide the other parent with the children’s birth certificates and associated documents required to enable the passport application to be processed.

15.

Each parent may cause the children or any of them to travel outside New South Wales but within the Commonwealth of Australia during school holiday periods and at such other times as agreed provided that the travelling parent provides the other parent with not less than seven (7) days’ written notice in advance specifying the time of departure and return, reasonable particulars of transport (including flight details), accommodation details and contact details whilst travelling.

16.

Each parent may cause the children or any of them to travel overseas during school holiday periods and at such other times as agreed provided that the travelling parent gives the other parent at least four (4) weeks’ written notice in advance specifying the time of departure and return, reasonable particulars of transport (including flight details), accommodation details and contact details whilst travelling.

17.

In the event that either party fails to execute any document necessary to give effect to these Orders, the Registrar of the Federal Circuit Court of Australia at Sydney is appointed under section 106A of the Family Law Act 1975 to execute the document on behalf of the party who refuses or neglects or otherwise fails to execute it and do all acts and do all acts and things necessary to give force and effect to these Orders AND FURTHER the party refusing or neglecting or otherwise failing to execute the document or documents is to pay the costs of the other party in relation to obtaining the signature of the Registrar.

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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